United States District Court, N.D. Indiana, Fort Wayne Division
MICHAEL A. WARTELL, Plaintiff.
PURDUE UNIVERSITY, et al., Defendants.
OPINION AND ORDER
ROBERT L. MILLER, Jr., District Judge.
This case arises from an ungainly set of facts. On this Civil Rule 72(a) objection to Magistrate Judge Andrew P. Rodovich's ruling on a motion to compel, this judge becomes the sixth Indiana or federal judge to consider Purdue University's claim that the attorney-client privilege protects documents sought by plaintiff Michael A. Wartell. For the reasons that follow, this judge becomes the sixth to reject Purdue's argument and order Purdue to produce the documents.
Indiana University-Purdue University Fort Wayne Chancellor Michael Wartell asked for a waiver of the university's mandatory retirement age, and University President Frances Cordova declined the request. Dr. Wartell says Dr. Cordova then harassed and discriminated against him on the basis of sex and age, and Dr. Wartell filed an internal complaint against Dr. Cordova. Such a complaint ordinarily would trigger internal Purdue procedures for resolving complaints of discrimination and harassment. Under those procedures, a Purdue employee would investigate the complaint and, after consulting with a panel chosen by the advisory committee on equity, the panel would make a written resolution of the complaint.
It seems that this sort of dispute between the president and chancellor aren't routine at Purdue, and Dr. Wartell expressed concern about the fairness of a process in which people who answer to the president would investigate and resolve his claim against the president. The board of trustees proposed a special one-time only method of addressing Dr. Wartell's complaint. Purdue Vice President Alysa Christmas Rollock proposed that method to Dr. Cordova and Dr. Wartell in a letter, and both agreed to it. This is the first step of the procedure outlined in Vice President Rollock's letter:
1. An independent investigator (preferably an Indiana attorney with a practice in the area of higher education) (the "Investigator") acceptable to each of you will be appointed by me to conduct a thorough investigation of the Complaint, including interviews with each of you and others as the Investigator may deem appropriate. The Investigator will be asked to work expeditiously with a goal of concluding the investigation within 45 days.
The investigator was to begin by interviewing Dr. Wartell, then decide whether any of Dr. Wartell's allegations, if substantiated by a preponderance of the evidence, would amount to a violation of Purdue's anti-harassment and equal opportunity policies. If so, the investigator would continue the investigation to determine whether any allegation was substantiated, whether any substantiated allegation violated university policies, what sanctions should be imposed on either side.
Vice President Rollock was to appoint a panel consisting of three members of the board of trustees (with the president and chancellor each to have what amounted to two peremptory challenges). This is what the investigator was to do with respect to that panel:
3. The Investigator will prepare and deliver to a three-member panel (the "Panel") a report that indicates his/her determinations as described in paragraph 2. The Panel will then meet and members of the Panel shall consider: (a) the Investigator's report; (b) the Complaint and Respondent's response; and (c) in the event the Panel requests addition information from the Investigation or either party, the written submissions provided to the Panel in response to such requests. The parties will not meet with the Panel.
The Panel's written decision was to be final.
After the president and chancellor agreed to that procedure, Vice President Rollock engaged John C. Trimble, a prominent Indianapolis attorney, to serve as the investigator, to be paid by Purdue. Neither the president nor the chancellor objected to Mr. Trimble's selection. But it appears that Chancellor Wartell and Vice President Rollock might have differed in their understanding of the role Mr. Trimble was to play. Vice President Rollock retained Mr. Trimble as an attorney for Purdue. Chancellor Wartell didn't learn that Mr. Trimble had been retained in that capacity until much later.
Mr. Trimble set about the tasks outlined in the vice president's letter. He interviewed the president, the chancellor, and about twelve others. When he interviewed Dr. Wartell, Mr. Trimble didn't disclose that he was acting as Purdue's attorney (the limited record before the court doesn't explain why he didn't). Mr. Trimble prepared his report and submitted it to - and only to - the three-trustee panel. The panel found that no discrimination occurred, and sent its decision to the president, the chancellor, and Vice President Rollock.
Dr. Wartell asked to see Mr. Trimble's report and Purdue ultimately denied his request under the Indiana Access to Public Records Act. Dr. Wartell pursued the matter to the State Public Access Counselor, who said the attorney-client privilege justified Purdue's decision not to release Mr. Trimble's report. Dr. Wartell moved on to the Tippecanoe Circuit Court, which ordered Purdue to release the Trimble report and associated documents, finding that Purdue was equitably estopped from claiming either the attorney-client privilege or the work-product privilege.
Purdue appealed. The Court of Appeals of Indiana unanimously affirmed on the basis of equitable estoppel. Purdue University v. Wartell , 5 N.E.3d 797 (Ind.Ct.App. 2014). No previous appellate decision in Indiana had applied equitable estoppel to the attorney-client privilege. The court of appeals did so because, as it saw the facts, Purdue had concealed from Dr. Wartell that it had retained Mr. Trimble as an attorney rather than as an independent investigator, while Dr. Wartell's guileless understanding of Mr. ...