The opinion
Case: 23-30386 Document: 120-1 Page: 1 Date Filed: 06/17/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-30386
____________ FILED
June 17, 2024
Sharon Lewis, Lyle W. Cayce
Clerk
Plaintiff—Appellee,
versus
Vicki Crochet, Individually; Robert Barton, Individually, also
known as Bob,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:21-CV-198
______________________________
Before Stewart, Duncan, and Engelhardt, Circuit Judges.
Carl E. Stewart, Circuit Judge:
Vicki Crochet and Robert Barton (collectively, “Appellants”) appeal
the district court’s order compelling evidentiary disclosures and depositions
implicating the attorney-client privilege. For the reasons set out below, we
REVERSE and REMAND.
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I. Factual Background and Procedural History
Sharon Lewis (“Lewis”), an African-American woman, worked as an
assistant athletic director for Louisiana State University’s (“LSU”) football
team until 2022. Lewis’s role included the authority to hire and manage
student workers in the football team’s administrative offices. Lewis alleges
that she experienced and witnessed numerous instances of racist and sexist
misconduct from former head football coach Les Miles (“Miles”) and that
she received complaints of sexual harassment from student workers that she
oversaw. Lewis ferried those complaints to the heads of the athletics
program, often with no action taken.
A. The 2013 Investigation
In 2013, LSU retained Appellants, partners of the law firm Taylor,
Porter, Brooks & Phillips LLP (“Taylor Porter”), to conduct a Title IX
investigation of sexual harassment allegations made against Miles. That
report and its contents were kept confidential, and allegations brought by the
student complainants were privately settled. 1 The relevant documents
generated in that investigation were two memoranda, the Student Complaint
Memo (“Student Complaint Memo”) and the Memo to File (“Memo to
File”), that summarized the factual allegations in sexual harassment
complaints against LSU football staff. After the investigation, Miles was
“cleared of any wrongdoing”; nevertheless, LSU urged Miles to refrain from
one-on-one contact with student employees, a recommendation that was
memorialized in an August 13, 2013 Directive Letter (“Directive Letter”).
During the 2010s, sexual assault allegations against LSU football
players, coaches, and staff were the subject of news media stories across the
_____________________
1
See Lewis v. Danos, 83 F.4th 948, 951–52 (5th Cir. 2023).
2
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nation. On November 16, 2020, USA Today published an article asserting
that there was widespread sexual misconduct in LSU’s athletics program. 2
Following the release of the article, LSU retained the law firm Husch
Blackwell LLP to conduct an independent review of LSU’s Title IX
compliance and the incidents reported in the USA Today article. The article
also prompted Lewis to bring Title VII and Title IX claims against numerous
members of LSU’s Board of Supervisors (“Board”) and athletics
department. She also filed civil Racketeer Influenced and Corrupt
Organization Act (“RICO”) claims against Appellants. The alleged RICO
claims arose from Appellants’ conduct in the Title IX investigation and an
alleged scheme to suppress sexual harassment and misconduct complaints
against Miles and LSU football players and staff.
On June 16, 2022, the district court dismissed the RICO claims against
Appellants because Lewis’s claims were time-barred and she failed to
establish proximate causation. On appeal of the dismissal order, a panel of
this court affirmed the district court on the grounds that Lewis knew of her
injuries from alleged racketeering as early as 2013, and thus the four-year
statute of limitations had expired before she filed suit in 2021. 3 The panel
further held that the causal chain from the alleged concealment of the Taylor
Porter Report to Lewis’s alleged injuries—the loss of her job, future
_____________________
2
Kenny Jacoby et al., LSU Mishandled Sexual Misconduct Complaints Against
Students, Including Top Athletes, USA Today (Jan. 28, 2021, 9:20 AM),
https://www.usatoday.com/in-depth/sports/ncaaf/2020/11/16/lsu-ignored-campus-
sexual-assault-allegations-against-derrius-guice-drake-davis-other-students/6056388002/
[https://perma.cc/65D9-K4Y9].
3
See Danos, 83 F.4th at 956.
3
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opportunities, and reputational damage—was too attenuated to sustain her
civil RICO claims. 4
B. The Crime-Fraud Exception Order
During the appeal of the dismissal order, Lewis’s Title VII and Title
IX claims against the Board proceeded to a heated discovery period. In
October 2022, the Board moved for a protective order to prevent depositions
of Appellants and the disclosure of documents from Taylor Porter’s Title IX
investigation because they were irrelevant to Lewis’s remaining Title VII and
Title IX claims. The Board further asserted that the attorney-client privilege
and the work product doctrine applied. In opposition, Lewis countered that
the unredacted Student Complaint Memo, unredacted Taylor Porter billing
records, and other supporting documents were discoverable under the crime-
fraud exception. Lewis pointed to several federal and state laws regarding
concealing public records, bribery, or influencing or preventing testimony in
support of her argument.
After the motion was submitted, the parties urged the district court to
decide the crime-fraud exception issue before addressing the rest of the
Board’s motion for a protective order. The district court released its opinion
on the crime-fraud exception issue on March 14, 2023 (the “Crime-Fraud
Exception Order”). It determined that Lewis made a prima facie showing
that the Board violated Louisiana Revised Statutes 14:132(B) because she
provided evidence that “the Board intentionally concealed the Memo to File,
Student Complaint Memo, and [any] Attachments beginning on May 15,
2013, at Taylor Porter’s law offices.” The district court noted that Lewis
further demonstrated that Crochet wrote the “Memo to File, documenting
the discussion by some members of the Board regarding Taylor Porter’s
_____________________
4
See id. at 956–58.
4
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investigation . . . and the method by which the Student Complaint Memo and
Attachments were to be preserved.”
In its reasons, the district court pointed out that Appellants and
several members of the Board met on May 15, 2013, and received hard copies
of all the relevant documents before “return[ing] their hard copies to the
Taylor Porter lawyers” for storage at their office. It then noted the Student
Complaint Memo’s language that analyzed whether the memo would be
subject to public records requests or requests for production in any legal
proceeding and “attempt[ed] to minimize the possibility of” such by
requiring “any written directive [letter]” to Miles “to be maintained
exclusively in the law offices of Taylor Porter.” It then concluded that Lewis
also made a prima facie showing that the May 15, 2013 meeting, Memo to
File, Student Complaint Memo, and its attachments were made in
furtherance of violating La. R.S. 14:132(B) and that the Board failed to rebut
the showing. But upon review of the alleged criminal conduct and the
withheld information in the redacted Student Complaint Memo and Taylor
Porter billing records, the district court held that the unredacted documents
did not reasonably relate to the concealment of the alleged public records.
Thus, it determined that the unredacted memo and billing records did not
fall within the crime-fraud exception. The district court then deferred ruling
on whether any related documents associated with the Memo to File and
Student Complaint Memo could be reasonably related to the crime of injury
to the public record. In sum, the district court’s Crime-Fraud Exception
Order accepted Lewis’s theory that the Board violated La. R.S. 14:132(B) as
plausible and deferred its express ruling on whether the privilege could be
pierced.
The day after it issued its Crime-Fraud Exception Order, the district
court held a status conference to discuss the status of the case and ordered
the parties to prepare letters identifying any additional discovery requests.
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After receiving those letters, the district court ordered Lewis to file a motion
to compel addressing the lingering “issues of discoverability and the
application of [its Crime-Fraud Exception Order].” The Board sought a writ
of mandamus from this court to reverse the Crime-Fraud Exception Order. 5
The panel denied mandamus relief because it was “confident [that] the
[district] court will take reasonable measures to monitor the depositions and
ensure the witnesses are not required to reveal privileged information that
does not bear a ‘reasonable relationship’ to the Board’s alleged concealment
of public records.” 6
C. The April 11, 2023 Motion to Compel
On April 11, 2023, Lewis filed a motion to compel the depositions of
Appellants and the disclosure of the redacted portions of the Taylor Porter
Report and other information alleged to have been concealed at Taylor
Porter’s offices. That same day, Appellants sought a protective order to
prevent the disclosure of legal advice and communications between LSU and
Appellants as governed by attorney- and work-product privileges. The Board
and two of its members also filed oppositions to Lewis’s motion to compel.
The district court denied Appellants’ motion for a protective order
and compelled the depositions of Appellants and the disclosure of documents
drafted during the 2013 investigation (“Disclosure Order”). It began by
stating that Appellants’ arguments that the Crime-Fraud Exception Order
was erroneous were “a request for reconsideration of th[at order] under Rule
59(e), which the [d]ismissed [Appellants] lack standing to make.” It further
stated that Appellants “stood idly by while the Board and [Lewis] extensively
litigated the crime-fraud exception issue.” It determined that Appellants’
_____________________
5
Case No. 23-30441, R. Doc. 2-1 at 2.
6
Case No. 23-30441, R. Doc. 47-1 at 3–4.
6
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attempt to “question[] the correctness of [its] ruling on the basis of new
arguments or cleaned-up versions of already considered arguments flies in
the face of the Fifth Circuit’s prohibition on using a Rule 59(e) motion to
relitigate old matters and raise issues that ‘could, and should, have been made
before [a ruling was] issued.’” It went on to consider Appellants’ arguments
based on relevance and proportionality in its order.
The district court ultimately determined that the contested
documents and deposition testimony requested were relevant to Lewis’s
Title VII and Title IX claims. It then rejected the Board’s argument that
Theriot v. Parish of Jefferson, 185 F.3d 477, 491 (5th Cir. 1999) barred the
depositions of Appellants because Theriot addressed requests for depositions
of the defendants’ counsel in a then-pending case. With respect to the
document discovery that Lewis sought, the district court “compelled [the
Board] to produce documents responsive 7 to” Lewis’s requests related to
“alleged efforts by the Board to conceal sexual harassment allegations made
against [] Miles.” Appellants timely appealed.
II. Standard of Review
Ordinarily, this court’s “appellate jurisdiction generally extends only
to ‘final decisions of the district courts.’” La Union del Pueblo Entero v.
Abbott, 68 F.4th 228, 232 (5th Cir. 2023) (quoting 28 U.S.C. § 1291).
However, we also have jurisdiction over a “narrow class of decisions” that
are “immediately appealable as collateral orders even if no final judgment has
been rendered.” Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913
F.3d 443, 448 (5th Cir. 2019) (quoting Dig. Equip. Corp. v. Desktop Direct,
_____________________
7
The document requests sought emails between LSU, the Board, and Taylor
Porter “discussing opposing the release of the Student Complaint Memo and Directive
Letter” in the public records request litigation initiated by USA Today in the Nineteenth
Judicial District Court of the State of Louisiana.
7
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Inc., 511 U.S. 863, 867 (1994)). The legal issue of a non-party’s “[s]tanding
is reviewed under a de novo standard.” Castillo v. Cameron County, 238 F.3d
339, 347 (5th Cir. 2001) (citing Tex. Off. of Pub. Util. Couns. v. FCC, 183 F.3d
393, 419 n.34 (5th Cir. 1999)). “Because the application of the attorney-client
privilege is a fact question to be determined in light of the purpose of the
privilege and guided by judicial precedents, [] the district court’s finding
[that the crime-fraud exception applies is reviewed] for clear error only.” In
re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir. 2005) (quoting United
States v. Edwards, 303 F.3d 606, 618 (5th Cir. 2002)). A factual determination
is not clearly erroneous if it is “plausible in light of the record as a whole.”
Id. at 337 (quoting Edwards, 303 F.3d at 645 (internal quotation marks and
citation omitted)). Clear error exists where a review of the record results in a
definite and firm conviction that a mistake has been committed. United States
v. Lima-Rivero, 971 F.3d 518, 520 (5th Cir. 2020).
III. Discussion
As a preliminary matter, the parties dispute whether this court has
jurisdiction to hear the instant interlocutory appeal and whether Appellants
have standing to appeal the district court’s denial of their motion for a
protective order. On the merits, Appellants contend that the district court
clearly erred in determining that the crime-fraud exception applied to the
documents produced by Appellants and their communications with LSU’s
Board. We begin with jurisdiction and standing before addressing the merits
of this appeal.
A. Jurisdiction
At issue is whether the instant interlocutory appeal is permissible
under the collateral order doctrine. 28 U.S.C. § 1291 provides that our
appellate jurisdiction extends only to “final decisions of the district courts.”
However, in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949),
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the Supreme Court established the collateral order doctrine, a narrow
exception to § 1291, for “a small set of prejudgment orders that are ‘collateral
to’ the merits of an action and ‘too important’ to be denied immediate
review.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009) (quoting
Cohen, 337 U.S. at 546). Lewis contends that “[d]isclosure orders adverse to
the attorney-client privilege do not qualify for immediate appeal under the
collateral order doctrine” based on the Court’s decision in Mohawk, 558 U.S.
at 108–09. We disagree.
We have recently explained that interlocutory “[o]rders are
immediately appealable under [the collateral order doctrine] only if they ‘(1)
conclusively determine the disputed question, (2) resolve an important issue
completely separate from the merits of the action, and (3) [are] effectively
unreviewable on appeal.’” La Union, 68 F.4th at 232 (quoting Henry v. Lake
Charles Am. Press, LLC, 566 F.3d 164, 171 (5th Cir. 2009)). It is important to
note that the first two factors of this test are easily satisfied here, as the
Disclosure Order is conclusive and the issue regarding the attorney-client
privilege is completely separate from the merits of Lewis’s Title VII and Title
IX claims. See Mohawk, 558 U.S. at 108 (holding same). Thus, we are left with
the question of whether the Disclosure Order and the Crime-Fraud
Exception Order are “effectively unreviewable on appeal.” Lake Charles Am.
Press, LLC, 566 F.3d at 171. We hold that they are.
In Whole Woman’s Health v. Smith, 896 F.3d 362 (5th Cir. 2018),
reproductive health organizations sued Texas officials after the passage of a
bill regulating the disposal of fetal remains. Id. at 364. The plaintiffs sought
internal communications from a non-party who had testified at the
emergency injunction stage and the district court ordered the non-party to
turn over the requested documents. Id. at 366–67. The non-party appealed.
Id. at 367. Citing Mohawk, the plaintiffs countered that the court lacked
appellate jurisdiction over an interlocutory discovery order. Id.
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We disagreed and held that the consequences of forced discovery were
“effectively unreviewable” on appeal from the final judgment because the
appellant was a non-party to the case. Id. Mohawk was inapposite because it
relied on the fact that a party could “remedy erroneously ordered discovery”
through appeal by moving a court to “remand[] the case for a new trial.” Id.
We reasoned that “Mohawk does not speak to the predicament of third
parties, whose claims to reasonable protection from the courts have often
been met with respect.” Id. at 368. Ultimately, we concluded that the case
was distinguishable from Mohawk because “a new trial order can hardly avail
a third-party witness who cannot benefit directly from such relief.” Id. at
367–68.
Whole Woman’s Health is instructive here. Appellants’ claims are
effectively unreviewable after final judgment because, unlike parties to an
action, they can sustain no relief from a new trial order. See id.; see also
Vantage Health Plan, Inc., 913 F.3d at 449–50 (holding the same with respect
to compelled disclosure of a non-party’s sensitive commercial documents).
Mohawk was a case addressing a party’s interlocutory appeal of a disclosure
order adverse to the attorney-client privilege and thus does not apply to bar
appellate jurisdiction here. Accordingly, we conclude that we have appellate
jurisdiction over this appeal because the Disclosure Order and the Crime-
Fraud Exception Order are effectively unreviewable on appeal, and
Appellants’ appeal otherwise suits the criteria for collateral order review. See
Vantage Health, 913 F.3d at 449–50.
B. Standing
Lewis argues that Appellants lack standing to bring this appeal
because (1) they were not parties to the case at the time of the Crime-Fraud
Exception Order and (2) the attorney-client privilege belongs to the client,
not the attorney. We are unpersuaded by these arguments.
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The Supreme Court has held that “only parties to a lawsuit, or those
that properly become parties, may appeal an adverse judgment.” Marino v.
Ortiz, 484 U.S. 301, 304 (1988). Nonetheless, some exceptions exist to allow
third-party standing to appeal orders injurious to their interests. United States
v. Chagra, 701 F.2d 354, 358–59 (5th Cir. 1983). Where review is sought of
orders issued after a party is dismissed from the underlying suit, that party
“is often allowed to appeal” if the order affects its interests. Id. at 359
(citation omitted); see also In re Beef Indus. Antitrust Litig., 589 F.2d 786, 788
(5th Cir. 1979). A non-party may appeal where it “actually participated in the
proceedings below, the equities weigh in favor of hearing the appeal, and the
non-part[y] ha[s] a personal stake in the outcome.” Castillo, 238 F.3d at 349
(citations omitted).
In Castillo v. Cameron County, the State of Texas was a party-
defendant listed in the original complaint that sought appellate review of
orders issued after it was dismissed from the case. 238 F.3d at 343. The
plaintiffs brought § 1983 claims against Texas and local county jailers for
overcrowding of county jails. Id. at 343–44. The district court entered a
temporary injunction ordering the county to reduce the jail population and
renewed the injunction several times. Id. at 344–46. Because Texas satisfied
its obligations in preventing the overcrowding attributable to their inaction,
it was dismissed from the action. Id. at 346. A few days after Texas was
dismissed, the district court denied the motion to terminate the injunction
against the county, and Texas appealed the denial. Id. at 347. On appeal, we
held that Texas had standing because it “ha[d] been an active participant in
the proceedings,” maintained its position prior to its dismissal, and it risked
“being found in civil contempt” if it violated the order, thus providing it a
personal stake in the outcome of the appeal. Id. at 350–51.
Castillo is instructive here. Appellants actively participated in the
proceedings prior to their dismissal, the equities weigh in their favor, and
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they have a personal stake in the outcome as they must comply with the order
or risk contempt or sanctions. 8 See id. at 350. Furthermore, Federal Rule of
Civil Procedure 26(c)(1) gives any person or entity from which discovery is
sought, regardless of whether they are a named party to an action, the right
to move for a protective order. Appellants expressly invoked Rule 26(c)(1) in
their motion. The district court considered this motion in the Disclosure
Order, rejected Appellants’ arguments, and compelled Appellants’
compliance with Lewis’s discovery requests. Thus, Appellants have standing
to bring the instant appeal.
C. Crime-Fraud Exception
The attorney-client privilege “exists to encourage full disclosure of
pertinent information by clients to their attorneys.” In re Int’l Sys. & Controls
Corp. Sec. Litig., 693 F.2d 1235, 1242 (5th Cir. 1982). This privilege extends
“to past criminal violations” because “the client, given the nature of [an]
adversary system, has a legitimate interest in securing informed
representation without fear of forced disclosure.” Id. However, a client “has
no legitimate interest in seeking legal advice in planning future [or ongoing]
criminal activities.” Id. (citation omitted). The crime-fraud exception
vitiates attorney-client privilege if “the client consults an attorney for advice
that will assist the client in carrying out a contemplated illegal or fraudulent
scheme.” Id.
The district court used a three-step analysis to determine whether the
crime-fraud exception applied to Lewis’s discovery and deposition requests.
In its Crime-Fraud Exception Order, it evaluated whether (1) Lewis made a
_____________________
8
“A party commits contempt when he violates a definite and specific order of the
court requiring him to perform or refrain from performing a particular act or acts with
knowledge of the court’s order.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir.
1995) (citing SEC v. First Fin. Group of Tex., Inc., 659 F.2d 660, 669 (5th Cir. 1981)).
12
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prima facie showing that Appellants committed a crime, (2) the privileged
communications were held in furtherance of that crime, and (3) the
communications were reasonably related to the fraudulent or criminal
activity. We address each step in turn.
i. Prima Facie Case
“In order to invoke [the crime-fraud] exception, the party seeking to
breach the walls of privilege must make out a prima facie case.” Id. To make
such a showing, the party must produce evidence that will satisfy the
determination that the exception applies until contradicted or overcome by
other evidence. See In re Grand Jury Proceedings in the Matter of Fine, 641 F.3d
199, 203 (5th Cir. 1981). On appeal, Lewis contends that she set out a prima
facie case that the Board utilized Appellants to violate La. R.S. 14:132(B). We
disagree.
To evaluate this issue, we must examine the statutory text of the
alleged crime. Louisiana Revised Statutes 14:132(B) provides that:
Second degree injuring public records is the intentional
removal, mutilation, destruction, alteration, falsification, or
concealment of any record, document, or other thing, defined as
a public record pursuant to R.S. 44:1 et seq. and required to be
preserved in any public office or by any person or public officer
pursuant to R.S. 44:36.
La. R.S. 14:132(B) (emphasis added). The Louisiana Public Records Act sets
out the definition of a public record:
All books, records, writings . . . memoranda, and papers, and all
copies, duplicates [of such], . . . having been used, being in use,
or prepared, possessed, or retained for use in the conduct,
transaction, or performance of any business, transaction, work,
duty, or function which was conducted, transacted, or
performed by . . . order of any public body . . . are “public
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records”, except as otherwise provided in this Chapter or the
Constitution of Louisiana.
La. R.S. 44:1(A)(2)(a) (emphasis added). It is uncontested that the Board is
a public body. See La. R.S. 44:1(A)(1). The Student Complaint Memo, Memo
to File, and its supporting documents were created by the Board’s retained
counsel, and thus likely qualify as public records unless some exception in the
Louisiana Public Records Act applies. See La. R.S. 14:132(B). Louisiana
courts have observed that La. R.S. 44:4.1(C) makes clear that “attorney-
client communications are an exception to the Public Records [L]aw and are
not a public record.” Council of City of New Orleans v. Washington, 2009-
0389, p.3 n.4 (La. App. 4 Cir. 5/12/09), 13 So.3d 662, 664 n.4, vacated, 2009-
1067 (La. 5/29/09), 9 So.3d 854 (vacating on grounds that arguments were
inappropriately raised for the first time on appeal); see also Talley v. La. Dep’t
of Transp. & Dev., 2022-0983, p. 11 (La. App. 1 Cir. 2/24/23), 361 So.3d 1041,
1049 (“Records that contain privileged information, by definition, are not a
public record.”).
Based on this persuasive authority, we conclude that the unredacted
copies of the Student Complaint Memo, Memo to File, and supporting
documents were not public records at the time of the alleged concealment.
See Washington, 361 So.3d at 1049. Furthermore, Appellants correctly point
out that the student complainant who is mentioned in the Student Complaint
Memo and Memo to File consistently expressed that she would not consent
to the disclosure of the unredacted report. This demonstrates that the
documents may also be exempted from inclusion under the Public Records
Act based on the student’s right to privacy afforded to her under Article I,
Section 5 of the Louisiana Constitution. See, e.g., E. Bank Consol. Special Serv.
First Prot. Dist. v. Crossen, 2004-838 (La. App. 5th Cir. 12/28/04), 892 So.2d
666, writ denied, 897 So.3d 608 (La. 2005); La. Const. art. I, § 5; La. R.S.
44:31 (providing that the right to examine records is subject to statutory and
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Constitutional restrictions); La. R.S. 44:4.1 (stating same); La. R.S.
44:1(2)(a).
Although the Public Records Act’s exceptions are to be construed
narrowly to ensure the public right of access, 9 there is minimal evidence
supporting the district court’s conclusion that the Board and Appellants
actually concealed the documents. In its Crime-Fraud Exception Order, the
district court stated that Board member Joe Alleva (“Alleva”) testified that
the Board members chose to preserve the documents in the law offices of
Taylor Porter to “stop [the Taylor Porter Investigation] from becoming
public information.” Our close review of the record demonstrates the district
court’s error in this determination.
Alleva testified that he believed that the Board chose to preserve the
unredacted copies of the documents at Taylor Porter’s offices to “protect
the name of the young lady and to stop it from becoming public information.”
In its Crime-Fraud Exception Order, the district court shortened this
response to only mention that the Board wished to “stop [the Taylor Porter
investigation] from becoming public information.” This discrepancy
between the actual testimony and the district court’s interpretation of the
testimony raises doubt as to the correctness of its determination. See Lima-
Rivero, 971 F.3d at 520. Beyond this inconsistency from the record, Lewis
presented little other evidence demonstrating actual concealment of the
alleged public records. Thus, we conclude that the district court clearly erred
in determining that Appellants and the Board criminally concealed public
records as contemplated under La. R.S. 14:132(B). See id.
_____________________
9
Landis v. Moreau, 2000-1157, p. 4 (La. 2/21/01), 779 So.2d 691, 694 (citing Title
Rsch. Corp. v. Rausch, 450 So.2d 933 (1984)).
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ii. Furtherance of a Crime or Fraud
Looking beyond the prima facie case, the district court’s ruling on the
crime fraud exception constitutes clear error. “Under the crime-fraud
exception to the attorney-client privilege, the privilege can be overcome
where communication or work product is intended to further continuing or
future criminal or fraudulent activity.” Edwards, 303 F.3d at 618 (internal
quotation marks and citation omitted) (emphasis added). In other words, the
client must have consulted their counsel “for advice that will assist the client
in carrying out a contemplated illegal or fraudulent scheme.” In re Int’l Sys.,
693 F.2d at 1242 (citation omitted). Appellants argue that Lewis
misrepresented a Board member’s deposition testimony to prove that the
Board “sought legal advice from” Appellants regarding whether the storage
of the Miles documents in Taylor Porter’s office would be a violation of La.
R.S. 14:132(B). Thus, they argue that “Lewis has not made and cannot make
any showing that LSU sought advice from” Appellants “for the purpose of
furthering the crime of second degree injuring of a public record in violation
of La. R.S. 14:132(B).”
Appellants are correct. As discussed above, the district court gave
undue weight to the truncated version of Alleva’s testimony that it was
presented. Beyond this strained interpretation of the deposition testimony,
Lewis presented no evidence that the Board sought to fraudulently conceal
public records through the attorney-client relationship. Thus, we conclude
that the district court clearly erred in determining that the Board sought
Appellants’ counsel “for advice that w[ould] assist [it] in carrying out a
contemplated illegal or fraudulent scheme.” See In re Int’l Sys., 693 F.2d at
1242.
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iii. Reasonable Relationship
The district court’s determination as to the last step of the analysis
fares no better. The third step asks whether the privileged information sought
was reasonably related to the alleged fraudulent activity. In re Grand Jury
Subpoena, 419 F.3d at 436 (citation omitted). In its Disclosure Order, the
district court compelled written discovery from and depositions of
Appellants regarding the Taylor Porter Investigation because they were
reasonably related to Lewis’s hostile work environment claims. On appeal,
Lewis contends that it did not err in doing so. We disagree.
In In re Grand Jury Subpoena, this court determined that discovery of
privileged communications and work product is limited to that which is
“reasonably related to the furtherance of the ongoing or future crime or fraud
at issue.” 419 F.3d at 347. This court has consistently rejected looser
limitations. See id. at 346 (collecting cases); see also In re Int’l Sys., 693 F.2d
at 1242–43 (citation omitted) (requiring “some valid relationship between
the work product under subpoena and the prima facie violation”). Otherwise,
“the crime-fraud exception [would] swallow[] the privilege rule.” In re
Grand Jury Subpoena, 419 F.3d at 347. With respect to the reasonable
relationship, Lewis did not make “the proper showing” that the documents
are reasonably related “to the furtherance of the ongoing or future crime or
fraud.” Id. Nonetheless, the district court accepted a looser limitation on the
scope of the reasonable relationship prong of the Crime-Fraud Exception
analysis without detailed reasoning. Thus, the district court clearly erred in
holding that Lewis had proven that a reasonable relationship existed between
the documents and the alleged prima facie violation of La. R.S. 14:132(B).
IV. Conclusion
In sum, the district court clearly erred in holding that Lewis
established a prima facie case that the Board violated La. R.S. 14:132(B) and
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Case: 23-30386 Document: 120-1 Page: 18 Date Filed: 06/17/2024
No. 23-30386
that the alleged privileged communications were made in furtherance of the
crime and reasonably related to the alleged violation. Thus, we REVERSE
the district court’s Crime-Fraud Exception Order and REMAND for
proceedings consistent with this opinion.
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