INTERLOCUTORY APPEAL FROM THE TIPPECANOE CIRCUIT COURT. The Honorable Donald L. Daniel, Judge. Cause No. 79C01-1205-PL-21.
ATTORNEYS FOR APPELLANT: DINA M. COX, JANELLE P. KILIES, Lewis Wagner, LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: J. BLAKE HIKE, LARRY L. BARNARD, MARK D. ULMSCHNEIDER, Carson Boxberger LLP, Fort Wayne, Indiana.
CRONE, Judge. BAKER, J., and BARNES, J., concur.
The question we address today is this: may a party be equitably estopped from asserting the attorney-client privilege and the work-product doctrine? In this case, Purdue University promised Chancellor Michael A. Wartell that an independent investigator acceptable to him, who was preferably (but not necessarily) an attorney, would be appointed to investigate a complaint that he had filed against Purdue's president, pursuant to specified procedures. Purdue then appointed an attorney acceptable to Wartell to investigate his complaint. In accordance with the specified procedures, the attorney interviewed Wartell, the president, and others and submitted a report with his determinations and recommendations regarding Wartell's complaint to a panel of Purdue's trustees.
Wartell requested the report from Purdue's public records officer, who denied the request based on the attorney-client privilege and the work-product doctrine. Wartell then filed a complaint with the state public access counselor, who determined that Purdue could assert the attorney-client privilege if the attorney " was acting as the University's attorney" in investigating Wartell's complaint, but not if he was " acting solely as an independent investigator." Appellant's App. at 26, 25.
Wartell then filed a lawsuit to compel Purdue to allow him to inspect or copy the
attorney's report. He deposed the attorney and the Purdue vice president who hired him. Both refused to answer certain questions based on the attorney-client privilege and the work-product doctrine. Wartell asked the trial court to determine as a preliminary matter that " due to the surreptitious circumstances surrounding Purdue's hiring of [the attorney], principles of equity estop Purdue from asserting the attorney-client privilege and the work-product doctrine to prevent disclosure of anything related to [the attorney's] investigation of Wartell's complaint[.]" Id. at 38. He also asked the trial court to compel the attorney and the vice president to answer the unanswered deposition questions. The trial court ruled that Purdue was equitably estopped from asserting the attorney-client privilege and the work-product doctrine and ordered the deposition questions to be answered.
On appeal, Purdue argues that the trial court's ruling is erroneous, noting that confidentiality is a fundamental aspect of the attorney-client relationship and that the attorney-client privilege and the work-product doctrine have few recognized exceptions. Based on the record before us, it is not necessary for us to determine whether the attorney acted as Purdue's legal counsel, as opposed to an independent investigator who happened to be an attorney. The attorney conducted his investigation in accordance with the specified procedures to be followed by the independent investigator, and the attorney did not inform Wartell that he was acting as Purdue's legal counsel, as would be required under the Indiana Rules of Professional Conduct. If the attorney was not acting as Purdue's legal counsel, then Purdue may not assert the attorney-client privilege and the work-product doctrine to prevent disclosure of the information that Wartell seeks.
But assuming for argument's sake that the attorney was acting as Purdue's legal counsel, we note that evidentiary privileges created " to shield selected information from discovery ... may not be wielded as swords at the will of a party." Madden v. Ind. Dep't of Transp., 832 N.E.2d 1122, 1128 (Ind.Ct.App. 2005). Moreover, it has long been recognized that " [e]quity looks beneath the rigid rules to find substantial justice" and " has the power to prevent strict legal rules from working injustice." Wabash Valley Coach Co. v. Turner, 221 Ind. 52, 65, 46 N.E.2d 212, 217 (1943), cert. denied . " Equitable estoppel is available if one party, through its representations or course of conduct, knowingly misleads or induces another party to believe and act upon ...