# Lewis v. Louisiana State University

> District Court, M.D. Louisiana · March 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10192563

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** March 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHARON LEWIS, CIVIL ACTION
Plaintiff
VERSUS NO. 21-198-SM-RLB
LOUISIANA STATE UNIVERSITY, ET AL.,
Defendants

ORDER AND REASONS

Before the Court is the Board of Supervisors of Louisiana State University and
Agricultural and Mechanical College’s (the “Board”) Motion for Protective Order.1 The
Board’s Motion asks the Court to, inter alia, prevent Sharon Lewis’s (“Plaintiff”) discovery
of the unredacted eight-page document captioned “Student Complaint” (hereinafter
“Student Complaint Memo”)2 and related unredacted Taylor Porter billing records, in
addition to documents underlying, or associated with each, on the basis of the attorney-
client privilege.3 Plaintiff opposes4 the Board’s Motion and asserts the crime-fraud
exception to the attorney-client privilege.

1 R. Doc. 289.
2 The documents in dispute stem from an investigation conducted by Taylor Porter, a law firm, into
allegations made by a student worker employed by Louisiana State University’s Athletic Department against
Leslie Miles. When the Plaintiff refers to the “Miles Report,” she is referring to the (1) May 15, 2013 “memo
to file” drafted by Vicki M. Crochet (hereinafter “Memo to File”); (2) eight-page document titled “Student
Complaint” dated May 15, 2013 (hereinafter “Student Complaint Memo”); and (3) nine pages of
attachments (hereinafter “Attachments”). The Board produced to Plaintiff an unredacted version of the
Memo to File (BOS-023945), a redacted version of the Student Complaint Memo (BOS023946 –
BOS023953), and an unredacted version of the Attachments (BOS023954 – BOS023962). The Board also
produced to Plaintiff an unredacted version of the written directive letter and attachments (hereinafter
“Directive Letter and attachments”) sent by Taylor Porter on behalf of the Board to Leslie Miles and his
counsel (BOS023963 – BOS023977). BOS023945 through BOS023977 are attached to this Order and
Reasons and made a part of the record. See R. Doc. 316-1.
3 R. Doc. 289-8 at pp. 11-13. In its Motion for Protective Order, the Board also vaguely asserts the application
of “the work product doctrine” but wholly fails to address the required elements for that protection to apply.
In terms of privilege, however, which the Board did assert, the Court has conducted in-camera review of the
unredacted Student Complaint Memo and Taylor Porter billing records and finds the redactions made are
of privileged information. Moreover, in her briefing, Plaintiff expressly concedes the Taylor Porter billing
records are privileged and does not dispute the Board’s contention that the Student Complaint Memo
contains privileged information. R. Doc. 302 at p. 9.
4 R. Docs. 295, 302, and 306.
BACKGROUND
The history of this case is set forth extensively in prior Orders and Reasons issued
by this Court.5 Accordingly, the Court will recite only the procedural developments
relevant to the instant dispute. On October 28, 2022, the Board filed a Motion for
Protective Order to “limit[] Plaintiff’s discovery to the claims remaining in this matter”
and to protect documents and testimony “protected by the attorney-client privilege.”6 The
Board also filed a motion for expedited consideration,7 which the Court granted.8 On
November 7, 2022, Plaintiff filed her first opposition to the Board’s Motion.9 On

November 15, 2022, the Court held a status conference with the parties to discuss the
Board’s Motion for Protective Order.10 With the assistance of this Court, during the
November 15, 2022 status conference, the parties were able to reach agreements on
certain items, thereby reducing the issues raised in the Board’s Motion for Protective
Order.11 Notably, unresolved during the status conference was Plaintiff’s argument raised
in her first opposition that the crime-fraud exception should be applied to overcome the
attorney-client privilege with respect to the unredacted Student Complaint Memo and
related unredacted Taylor Porter billing records, plus documents underlying, or
associated with, each.12 The Board produced the unredacted Student Complaint Memo
and unredacted Taylor Porter billing records to this Court for in-camera review.13
On November 21, 2022, Plaintiff filed a second opposition to the Board’s Motion

5 See, e.g., R. Doc. 254.
6 R. Doc. 289 at pp. 1, 4.
7 R. Doc. 290.
8 R. Doc. 291.
9 R. Doc. 295.
10 R. Doc. 297.
11 Id.
12 Id.
13 Id.; see also R. Doc. 312. Any objections to this Court’s in-camera review have been waived. See In re
Grand Jury Subpoena, 419 F.3d 329, 336 (5th Cir. 2005).
for Protective Order, laying out more fully, inter alia, her crime-fraud exception
arguments.14 On December 1, 2022, the Board filed its reply memorandum specifically
addressing Plaintiff’s crime-fraud exception arguments.15 On December 11, 2022, Plaintiff
filed a third and final opposition to the Board’s Motion for Protective Order, raising new
crime-fraud exception arguments.16 On December 12, 2022, the Court held an additional
status conference with the parties.17 The Court heard updates from the parties regarding
the status of discovery and addressed additional issues raised in the Board’s Motion for
Protective Order. During the status conference, the Court granted the Board leave of

Court to file a sur-reply in support of its Motion for Protective Order,18 which the Board
subsequently filed.19 Also during the status conference, the parties urged the Court to
decide the crime-fraud exception issue before deciding any remaining issues presented
by the Board’s Motion for Protective Order.
LAW AND ANALYSIS
In her opposition to the Board’s Motion for Protective Order, Plaintiff argues at
least two documents otherwise protected by the attorney-client privilege are discoverable
because the crime-fraud exception applies.20 Specifically, Plaintiff seeks the unredacted
Student Complaint Memo21 and related Taylor Porter billing records,22 plus all documents

14 R. Doc. 302.
15 R. Doc. 305.
16 R. Doc. 306.
17 R. Doc. 307.
18 Id.
19 R. Doc. 308.
20 R. Doc. 295 at pp. 7-16.
21 The Court conducted in-camera review of the Student Complaint Memo and determined that, unless the
crime-fraud exception applies, the redactions were proper as they were of privileged information or were of
sensitive information involving the student complainant, which the parties agreed to redact.
22 The Court conducted in-camera review of the Taylor Porter billing records and determined that, unless
the crime-fraud exception applies, the redactions were proper as they “‘reveal the nature of services
performed and/or the type of work performed by an attorney.’” Calogero v. Shows, Cali & Wash, LLP, 2021
WL 3617236 (E.D. La. 8/16/2021) (quoting C.J. Calamia Constr. Co. v. Ardco/Traverse Lift Co., 1998 WL
395130, at *2 (E.D. La. 7/14/1998)). Moreover, in her briefing, Plaintiff concedes the Taylor Porter billing
records are privileged. R. Doc. 302 at p. 9.
underlying, or associated with, each.23
The attorney-client privilege “exists to encourage full disclosure of pertinent
information by clients to their attorneys.”24 This protection 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.”25 Be that
as it may, “the client has no legitimate interest in seeking legal advice in planning future
[or ongoing] criminal activities.”26 The crime-fraud exception is “firmly entrenched in the
common law of attorney-client privilege.”27 As a result, the crime-fraud exception “comes

into play [and defeats 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.’”28
“In the instant case, subject matter jurisdiction is predicated upon a federal
question. Accordingly, federal common law applies.”29 To successfully invoke the crime-
fraud exception, the Fifth Circuit requires the moving party to establish the
communication was intended to further criminal or fraudulent activity continuing at the
time the communication was made or planned to occur in the future.30 This involves a
three-step showing. First, the moving party must “make an independent prima facie case

23 Plaintiff argues in opposition that “[c]ommunications between Crochet and Barton directed to Miles,
Ginsberg, Hardin, Student 2, Student 2’ father, Student 2’ attorney and any other individuals or
organization in the TPBR are not privileged.” See R. Doc. 302 at p. 15. Plaintiff does not reference any
particular communication or document she wants produced. This Order and Reasons applies only to the
Student Complaint Memo and the Taylor Porter billing records. The Court will not rule on a generalized
argument that is not in reference to a specific communication or document.
24 See In re Intern’l Sys. & Controls Corp. Sec. Lit., 693 F.2d 1235, 1242 (5th Cir. 1982).
25 Id.
26 Id.
27 Id.
28 Id. (quoting In re Murphy, 560 F.2d 326, 337 (8th Cir. 1977)).
29 Melson v. Vista World Inc.& Ass., 2012 WL 6002680, at *4 (E.D. La. 11/30/2012) (Milazzo, J.). The Court
will apply Louisiana state law to determine whether there have been prima facie violations of the Louisiana
laws cited by Plaintiff.
30 In re Grand Jury Subpoena, 419 F.3d 329, 335 (5th Cir. 2005).
that a crime [or fraud] has been committed.”31 A prima facie case for this purpose is
evidence of a crime “such as will suffice until contradicted and overcome by other
evidence,” i.e., “a case which has proceeded upon sufficient proof to that stage where it
will support a finding if evidence to the contrary is disregarded.”32 Second, if the moving
party has made a prima facie showing, the moving party must then demonstrate that the
client intended to further a crime during the attorney-client representation. “The test is
whether the client’s purpose is the furtherance of a [continuing or] future fraud or crime;
it is not enough that a communication merely provides evidence of fraud” or a crime.33

Third, the moving party must “then demonstrate that the privileged information bears a
relationship to the alleged crime or fraud.”34 Pleadings and allegations are not evidence
that will satisfy the Fifth Circuit’s analytical framework for the crime-fraud exception to
privilege.35 “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.”36
In support of Plaintiff’s contention that ongoing or future crimes were furthered
by attorney-client communications, and that as a result the crime-fraud exception
applies, she points to a smattering of federal and state laws she claims were violated: (1)

31 Ward v. Succession of Freeman, 854 F.2d 780, 790 (5th Cir. 1988).
32 In re Grand Jury Subpoena, 419 F.3d at 336 (quoting In re Intern’l Sys. and Controls Corp. Securities
Litigation, 693 F.2d 1235, 1242 (5th Cir. 1982)).
33 Southern Scrap Material Co. v. Fleming, 2003 WL 21474479, at *2 (E.D. La. 6/18/2003) (internal
citations omitted).
34 Ward, 854 F.2d at 790.
35 See In re Intern’l Sys. & Controls Corp. Sec. Lit., 693 F.2d at 1242 (5th Cir. 1982) (reversing a district
court when there was “nothing in the record” to support finding of a crime “except the plaintiff’s
allegations”).
36 In re Grand Jury Subpoena, 419 F.3d at 335 (quoting In re Burlington Northern, Inc., 822 F.2d 518,
524-25 (5th Cir. 1987)) (alteration in original).
18 U.S.C. § 1512(b)(1) (knowingly influencing, delaying, or preventing testimony);37 (2)
18 U.S.C. § 1512(c)(1) (corruptly concealing a record);38 (3) 18 U.S.C. § 1512(c)(2)
(corruptly obstructing an official proceeding);39 (4) 18 U.S.C. § 1512(k) (conspiracy to
commit any offense under 18 U.S.C. § 1512); (5) La. R.S. 14:118 (public bribery);40 (6) La.
R.S. 14:120 (corrupt influencing);41 (7) La. R.S. 14:132 (injuring public records);42 and (8)
La. R.S. 14:133 (filing or maintaining false public records).43 The Court finds Plaintiff has
carried only her burden of establishing a prima facie violation of La. R.S. 14:132 (injuring
a public record).
I. Plaintiff has not made an independent prima facie case that the
Board violated (1) 18 U.S.C. § 1512, (2) La. R.S. 14:118, (3) La. R.S.
14:120, or (4) La. R.S. 14:133.

a. Title 18, United States Code, Section 1512

In terms of the federal statutes she relies on, Plaintiff has failed to establish
violations of 18 U.S.C. § 1512(b)(1), § 1512(c)(1), and § 1512(c)(2). The offenses are found
in Chapter 73 of Title 18, Section 1512, of the United States Code, which generally deals
with obstruction of justice. More specifically, Section 1512 of Chapter 73 criminalizes
tampering with a witness, victim, or an informant. Plaintiff has not carried her burden of
establishing prima facie violations of §§ 1512(b)(1), 1512(c)(1), and 1512(c)(2) because (1)
there was no official proceeding and (2) Plaintiff cannot show the requisite intent
element. The Court will address both defects in turn.
First, the existence of an “official proceeding” is required to make a prima facie

37 R. Doc. 302 at p. 7.
38 R. Doc. 295 at p. 10; see also R. Doc. 302 at p. 4.
39 R. Doc. 306 at p. 3 n.2.
40 R. Doc. 302 at p. 8.
41 R. Doc. 306 at p. 3.
42 R. Doc. 295 at p. 8.
43 R. Doc. 306 at p. 3.
case that there has been a violation of 18 U.S.C. § 1512(b)(1),44 18 U.S.C. § 1512(c)(1),45
and 18 U.S.C. § 1512(c)(2).46 The term “official proceeding” is statutorily defined in Title
18, United States Codes, Section 1515(a)(1) as follows:
(A) a proceeding before a judge or court of the United States, a United
States magistrate judge, a bankruptcy judge, a judge of the United
States Tax Court, a special trial judge of the Tax Court, a judge of the
United States Court of Federal Claims, or a Federal grand jury;
(B) a proceeding before the Congress;
(C) a proceeding before a Federal Government agency which is authorized
by law; or
(D) a proceeding involving the business of insurance whose activities affect
interstate commerce before any insurance regulatory official or agency
or any agent or examiner appointed by such official or agency to
examine the affairs of any person engaged in the business of insurance
whose activities affect interstate commerce.

In her briefing, Plaintiff argues the Title IX investigation of Les Miles by Taylor
Porter attorneys47 was an “official proceeding before the Department of Education,”48
which, if true, would fit the definition of official proceeding at 18 U.S.C. § 1515(a)(1)(C).
Plaintiff points to no evidence in the record to show there was any other purported official
proceeding before a federal government agency.
The Fifth Circuit considered “the statutory definition and the contextual meaning
of the term ‘official proceeding’” in United States v. Ramos and found that “an ‘official
proceeding’ involves some formal convocation of the agency in which parties are directed

44 “Whoever knowingly uses intimidated, threatens, or corruptly persuades another person . . . with the
intent to influence, delay, or prevent the testimony of any person in an official proceeding shall be fined
under this title or imprisoned not more than 20 years, or both.”
45 “Whoever corruptly alters, destroys, mutilates, or conceals a record, document, or other object . . . with
the intent to impair the object’s integrity of availability for use in an official proceeding shall be fined under
this title or imprisoned not more than 20 years, or both.”
46 “Whoever corruptly otherwise obstructs, influences, or impedes any official proceeding . . . shall be fined
under this title or imprisoned not more than 20 years, or both.”
47 Plaintiff also argues Miriam Segar was involved in the Taylor Porter investigation. Plaintiff cites to no
evidence for this contention. See R. Doc. 302 at p. 7. Even if this were true, this fact does not affect the
Court’s finding that Plaintiff has failed to establish the existence of an “official proceeding before a Federal
Government agency.”
48 R. Doc. 295 at p. 10 (“The Miles Investigation was an official proceeding of the Department of
Education.”).
to appear, instead of any informal investigation conducted by any member of the
agency.”49 Indeed, “‘official proceeding’ is consistently used throughout § 1512 in a
manner that contemplates a formal environment in which persons are called to appear or
produce documents.”50 As a result, “in all the instances in which the term ‘official
proceeding’ is actually used in § 1512, its sense is that of a hearing rather than simply any
investigatory step taken by an agency.”51
Looking to the facts of Ramos, the Fifth Circuit was faced with deciding whether
an internal investigation conducted by U.S. Customs and Border Protection, a federal

government agency, into border patrol agents who shot at a drug smuggler near the
United States-Mexico border constituted an “official proceeding.”52 The Fifth Circuit
looked at the statute as a whole:
As can plainly be seen, the statute is focused on incidents in which one
person has exercised direct or indirect force or influence on another in order
to corrupt some official proceeding; this focus is in keeping with the stated
purpose of the statute: “[T]o enhance and protect the necessary role of crime
victims and witnesses in the criminal justice process.”53

This focus “indicate[d] to [the Fifth Circuit] that Congress did not intend for
‘official proceedings’ to include internal investigations into agency employee conduct.”54
Accordingly, the Fifth Circuit held the “Border Patrol’s internal investigation of alleged
employee misconduct” was not an “official proceeding within the meaning of” 18 U.S.C. §
1515 even when that investigation was conducted by a federal agency.55
Ramos highlights two fatal flaws with Plaintiff’s reliance on 18 U.S.C. §

49 United States v. Ramos, 537 F.3d 439, 462-63 (5th Cir. 2008).
50 Id. at 463.
51 Id.
52 Id. at 462-63.
53 Id. at 462.
54 Id.
55 Id. at 462-63.
1515(a)(1)(C) in support of her contention that the Title IX investigation of Les Miles by
Taylor Porter attorneys was an “official proceeding before the Department of
Education.”56 First, internal investigations of employee misconduct like the one
conducted by Taylor Porter are not “official proceedings” under Fifth Circuit precedent.
If an internal investigation of employee misconduct by a federal government agency
itself is not an “official proceeding,”57 then clearly neither is a similar investigation
conducted by a private law firm. Second, even if the Taylor Porter investigation was an
official proceeding, which it was not, Taylor Porter conducted it, meaning the “official

proceeding” was not “before a Federal Government agency.”58 By Plaintiff’s own
admission, the investigation of Miles was an internal one conducted by Taylor Porter.59
Further, to the extent Plaintiff suggests she may rely on a hypothetical
investigation before a federal government agency that never materialized to prove prima
facie violations of the federal criminal laws she cites, she may not. While the Fifth Circuit
has recognized “a proceeding need not be actually pending at the time of the obstructive
act,” there must be, at some point, an official proceeding before a federal government
agency.60 It is permissible for the official proceeding to commence sometime after the
criminal act occurs, provided a nexus exists between the criminal act and the official
proceeding.61 Plaintiff cites no evidence establishing, nor does she advance any argument
that, an official proceeding before a federal government agency occurred.

Second, baked into the intent element of 18 U.S.C. §§ 1512(b) and 1512(c) is the

56 R. Doc. 295 at p. 10 (“The Miles Investigation was an official proceeding of the Department of
Education.”).
57 Ramos, 537 F.3d at 462-63.
58 18 U.S.C. § 1515(a)(1)(C).
59 R. Doc. 295 at p. 12.
60 Id.
61 See United States v. Simpson, 741 F.3d 539, 552 (5th Cir. 2014).
requirement that there be an official proceeding. Section 1512(b)(1) requires corrupt
“intent to influence, delay, or prevent the testimony of any other person in an official
proceeding.” Section 1512(c) likewise requires corrupt intent to either “impair” an object
“for use in an official proceeding” or “otherwise obstruct . . . any official proceeding.”
Because the Court has found there was no official proceeding, the intent element required
to prevail under 18 U.S.C. §§ 1512(b) and 1512(c) fails.
Plaintiff also cites 18 U.S.C. § 1512(k), which makes it a crime to conspire to commit
any offense under 18 U.S.C. § 1512. Presumably, Plaintiff argues the crime was a

conspiracy, the object of which was obstruction of justice by violating 18 U.S.C. §§
1512(b)(1), 1512(c)(1), and 1512(c)(2). The Fifth Circuit has “identified the elements of a §
1512(k) conspiracy as: (1) an agreement between the [offender] and at least one other
person to pursue the object of the conspiracy, (2) the [offender’s] knowledge of the
unlawful purpose of the agreement, and (3) [the taking of] an overt act . . . by one of the
conspirators toward carrying out the object of the conspiracy.”62 The Fifth Circuit also has
held the intent element for conspiracy is “the same degree of criminal intent as is
necessary for proof of the underlying § 1512 substantive offense.”63 The Court has found
Plaintiff failed to carry her prima facie burden of establishing the corrupt intent element
for the underlying § 1512 substantive offenses. As a result, Plaintiff has failed to carry her
prima facie burden of establishing the corrupt intent element for § 1512(k) purposes.

Accordingly, Plaintiff has not made an independent prima facie case of a conspiracy to
commit a crime or fraud, i.e., the violation of § 1512(k).

62 United States v. Said, 2023 WL 167213, at *3 (5th Cir. 2023).
63 United States v. Fisch, 851 F.3d 402, 407 (5th Cir. 2017) (Clement, J.). This is an exception to the rule
that “a conviction for conspiracy requires proof of an agreement and an overt act in furtherance of the
conspiracy while a conviction for the underlying offense[, unlike the conviction for conspiracy,] requires
proof of each element of th[e] [substantive] offense.” See United States v. Henderson, 1994 WL 397718 (5th
Cir. 1994).
b. Louisiana Revised Statute 14:118

In terms of public bribery criminalized by La. R.S. 14:118,64 Plaintiff argues the
settlement reached between Student 2, a public employee,65 and the Board constitutes
public bribery. As the Louisiana Supreme Court has described it,
Public bribery may be defined generally as the voluntary giving or offering
to, or the acceptance of or offer to accept directly or indirectly by any public
officer, official or public employee, et cetera, anything of apparent, present,
or prospective value, with the intent to influence such person in relation to
his position, official duty or employment, or to incline him to act contrarily
to known rules of honesty and integrity. LSA-R.S. 14:118. It is an offense
against public justice, the gist of the crime being the wrong done to the
people by corruption in the public service.66

The Court finds the requirement of “specific intent” to influence conduct in relation
to Student 2’s position, official duty, or employment “or to incline [Student 2] to act
contrarily to known rules of honesty and integrity” embedded in the crime of public
bribery precludes Plaintiff’s ability to characterize the Board’s “giving” of funds to Student
2, as part of a lawful settlement negotiated at arms-length by represented parties, as a
bribe. Any other reading of La. R.S. 14:118 would lead to an absurd result; that is, all
settlements with public employees would constitute public bribery. The Court’s
conclusion conforms with strong public policy in favor of voluntary settlement of civil
suits. The evidence before the Court establishes the Board’s and Student 2’s intent was to

64 La. R.S. 14:118 prohibits “[t]he giving or offering to give, directly or indirectly, anything of apparent,
present, or prospective value” to, inter alia, a “public employee” or a witness or potential witness in a “trial
or other proceeding before any court, board, or officer authorized to hear evidence or take testimony” with
“the intent to influence his conduct in relation to his position, employment, or duty.”
65 While Student 2 may have been a potential witness in some potential proceeding, with respect to
witnesses and potential witnesses La. R.S. 14:118 requires there to be an active or ongoing “trial or other
proceeding before any court, board, or officer authorized to hear evidence or take testimony.” See La. R.S.
14:118; see also id. Reporter’s Comment; see also State of Louisiana v. DeKay, 387 So.2d 570, 572 (La.
1980). Plaintiff has not established the existence of an ongoing trial or other proceeding. Accordingly, the
Court only considers Plaintiff’s arguments with respect to public bribery of a public employee and not of a
witness.
66 State v. Bloomenstiel, 106 So.2d 288, 290 (La. 1958); see also State v. Hingle, 677 So.2d 603, 607-08
(La. App. 2 Cir. 6/26/1996) (addressing public bribery of a potential witness and describing the specific
intent element as specific intent to influence a witness’s testimony).
settle a civil dispute in good faith without “specific intent” to influence conduct in relation
to Student 2’s position, official duty, or employment in an improper manner. At its core,
Plaintiff has not shown the settlement between Student 2 and the Board was “an offense
against public justice” or a “wrong done to the people,” which the Louisiana Supreme
Court says describes “the gist of” public bribery.67 As a result, Plaintiff has failed to carry
her burden of showing a prima facie violation of La. R.S. 14:118.
c. Louisiana Revised Statute 14:120

In terms of corrupt influencing, Plaintiff references La. R.S. 14:120, which makes
corrupt bribery a crime, in a heading in her briefing but offers no argument in support
thereof.68 The Court is left to guess what Plaintiff’s argument is and the evidence on which
she may rely. As a result, Plaintiff has failed to carry her burden of showing a prima facie
violation of La. R.S. 14:120.
d. Louisiana Revised Statute 14:133

In terms of filing and maintaining false public records, La. R.S. 14:133 criminalizes
filing or maintaining public records that contain false statements of fact. Plaintiff argues
the Student Complaint Memo contains false statements of fact because it “concluded
Miles had not violated any laws or his employment contract.”69 An opinion that Miles
likely did not violate laws or his employment contract is a legal opinion, and legal opinions
are not statements of fact.70 As a result, Plaintiff has failed to carry her burden of showing
a prima facie violation of La. R.S. 14:133.
The Court will now address the instance in which Plaintiff has carried her burden
against the Board—a prima facie violation of La. R.S. 14:132 (injuring a public record).

67 Bloomenstiel, 106 So.2d at 290.
68 See R. Doc. 306 at p. 3.
69 Id. at p. 4.
70 See Geiling v. Wirt Financial Servs., Inc., 2014 WL 8473822 (E.D. Mich. 12/31/2014).
II. Plaintiff has made an independent prima facie case that the Board
violated La. R.S. 14:132(B).

The Louisiana Supreme Court “has determined that the right of access to public
records is a fundamental right guaranteed by La. Const. art. XII § 3, and whenever there
is any doubt as to whether the public has the right of access to certain records, the doubt
must be resolved in favor of the public’s right of access.”71 Accordingly, the right of access
to public records is guaranteed by the Louisiana Constitution and Public Records Law.72
These constitutional and statutory rights of access to public records are construed
liberally.73 Any exception to the Public Records Law must be narrowly construed, with
any doubt resolved in favor of the public’s right of access.74 To reflect the seriousness of
the protection for Louisiana citizens’ right of access to public records, the Louisiana
Legislature criminalizes concealment of public records in La. R.S. 14:132.
In the case at bar, Plaintiff relies on La. R.S. 14:132(B) in her effort to invoke the
crime-fraud exception to obtain an unredacted version of the Student Complaint Memo,
an unredacted version of the Taylor Porter billing records, and documents underlying or
associated with each. Plaintiff argues the Board committed a crime by violating La. R.S.
14:132(B), “Injuring Public Records,” when it “unlawfully conceal[ed] the Miles Report[,
a public record,] in [Taylor Porter lawyers’] law offices.”75 When Plaintiff mentions the
“Miles Report” in this context, she is referencing at a minimum the Memo to File, Student
Complaint Memo, and the Attachments.76 It may be that the Board also concealed the

71 Landis v. Moreau, 779 So.2d 691, 694 (La. 2001).
72 R.T. Talley v. La. Dep’t Transp. & Devel., 2023 WL 2199685, at *5 (La. App. 1 Cir. 2/24/2023).
73 Id.
74 Id.
75 R. Doc. 295 at p. 9.
76 The Attachments include, in part, proposed policies and policy acknowledgement forms/letters that may
well have been promulgated by the University at some point after May 15, 2013. Ultimately, however, the
Court has been provided neither argument nor evidence to support such a finding.
Directive Letter and attachments sent to, and signed by, Leslie Miles,77 but the Court does
not reach the issue because Plaintiff does not argue this point.
Looking to the language of the statute, La. R.S. 14:132(B) provides in pertinent
part:
Second degree injuring public records is the intentional . . . 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.

Accordingly, Plaintiff must make a prima facie showing that (1) a record was
intentionally concealed by the Board; (2) that record was a public record under La. R.S.
44:1 at the time the of concealment;78 and (3) that record was required to be preserved in
any public office or by any person or public officer pursuant to La. R.S. 44:36.79 Although
the Board argues only the Plaintiff’s failure to make a prima facie case as to the second
element,80 the Court will review all three elements.
To make a prima facie case, Plaintiff “‘must produce evidence such as will suffice
until contradicted and overcome by other evidence ... [or, in other words,] a case which
has proceeded upon sufficient proof to that stage where it will support [a] finding if
evidence to the contrary is disregarded.’”81 “The burden of establishing a prima facie case
of crime for this purpose in the civil discovery context is not great and is certainly less
than the standard that a district attorney or other prosecutor would use in pursuing

77 The Directive Letter requires it to be “maintained in the files of [Leslie Miles’ lawer’s] law offices and . . .
[the] law offices [of Taylor Porter] only” and proceeds to detail to the measures both the Board and Leslie
Miles are required to take to prevent disclosure under the Public Records Law. See R. Doc. 316-1
(BOS023963 – BOS023977).
78 Plaintiff does not argue the Taylor Porter billing records are a public record.
79 La. R.S. 14:132.
80 R. Doc. 305 at p. 7.
81 In re Katrina Canal Breaches Consol. Litig., 2008 WL 4401970 at *11 (E.D. La. 9/22/2008) (quoting In
re Grand Jury Proceedings, 641 F.2d 199, 203 (5th Cir. 1981)) (alterations supplied by Katrina Canal
Breaches; emphasis omitted).
criminal charges.”82 Plaintiff need not “establish the essential elements of a crime or fraud
beyond a reasonable doubt, since the crime-fraud exception does not require a completed
crime or fraud but only that the client have consulted the attorney in an effort to complete
one.”83 If Plaintiff makes this prima facie showing, the burden of persuasion then shifts
to the party asserting the privilege to give a reasonable explanation of the conduct or
communication.84
First, Plaintiff has provided evidence establishing, on a prima facie basis, the Board
intentionally concealed the Memo to File, Student Complaint Memo, and Attachments

beginning on May 15, 2013, at Taylor Porter’s law offices. “Near the end of February 2013,
a student employee in the Athletic Department reported . . . interactions with [Leslie
Miles] that made her uncomfortable enough to quit her part-time position.”85 Sometime
after that, “the Chancellor asked Taylor Porter to investigate the situation.”86 On May 15,
2013, Taylor Porter lawyer Vicki Crochet penned the May 15, 2013 Memo to File,
documenting the discussion by some members of the Board regarding Taylor Porter’s
investigation of the sexual harassment claims lodged against Leslie Miles and the method
by which the Student Complaint Memo and Attachments were to be preserved.87
Crochet’s Memo to File reads in pertinent part:
The [Student Complaint Memo and Attachments] were hand delivered and
discussed in a meeting on May 15, 2013. Those reviewing the [documents]
were: Garret “Hank” Danos (Chair of the Board of Supervisors), Robert
“Bobby” Yarborough (Board Chairman Elect), Stanley Jacobs (Chairman of
the Board – Athletic Committee), Shelby McKenzie (LSU Lead Legal
Counsel), Joe Alleva (Vice Chancellor and Director of Athletics), and
Miriam Segar (Senior Associate A.D./Senior Woman Administration). Also

82 Id. at *10.
83 Id.
84 Gutter v. E.I. Dupont de Nemours, 124 F.Supp.2d 1291, 1307 (S.D. Fla. 9/20/2000) (citing In re: Grand
Jury Investigation (Schroeder), 842 F.2d 1223, 1225 (11th Cir. 1987)).
85 R. Doc. 190-5 at p. 3.
86 Id.
87 Id. at p. 2.
present at the meeting and participating in the discussion were Vicki
Crochet and Bob Barton of Taylor Porter.

Following a comprehensive discussion . . ., all copies of the [documents]
were returned to Taylor Porter to maintain in its file. . . .

After review and discuss of the investigation, those present agreed to and
accepted the findings and recommendations of counsel . . . . Also, those
present agreed that this was appropriate administrative action that could
and should be taken without further review by the full Board.88

The Memo to File establishes the Student Complaint Memo and its Attachments
were hand delivered in a meeting on May 15, 2013, attended by Vicki Crochet and Bob
Barton (Taylor Porter lawyers), Garret “Hank” Danos (Board Chair), Robert “Bobby”
Yarborough (Board Chair-elect), Stanley Jacobs (Chairman of the Athletic Committee),
Shelby McKenzie (in-house counsel), Joe Alleva (Vice Chancellor and Director of
Athletics), and Miriam Segar (Senior Associate Athletic Director/Senior Woman
Administrator).89 The meeting participants were provided only hard copies (not
electronic copies) of the Student Complaint Memo and Attachments.90 The participants
discussed, inter alia, the Student Complaint Memo and Attachments and then returned
their hard copies to the Taylor Porter lawyers.91 The participants agreed all hard copies of
the Student Complaint Memo and Attachments were to be preserved in Taylor Porter’s
offices.92 The participants agreed no further review by the Board was necessary.93 No
meeting participant retained a copy of the Student Complaint Memo or Attachments—all
copies were returned to Taylor Porter.94 Joseph Alleva, a meeting participant, testified in

88 Id.
89 Id.
90 Id.
91 Id.
92 Id.
93 Id.
94 Id.
his deposition that the Memo to File prepared by Vicki Crochet is accurate.95 Joseph
Alleva also testified the chosen method of preservation—preservation in the law offices of
Taylor Porter—was, he believes, designed to “stop [the Taylor Porter investigation] from
becoming public information.”96 The Memo to File, Student Complaint Memo, and
Attachments were preserved exclusively in Taylor Porter’s law offices for approximately
eight years.
Looking deeper into the Student Complaint Memo, page 8 reflects consideration
of the possibility of the Board, “in the face of a public records request[,] . . . tak[ing] the

position that” “any written directive or other document generated regarding the
resolution of” Student 2’s complaint against Leslie Miles “is protected from production by
the privacy rights of the individuals involved.”97 Still, the Student Complaint Memo
cautions, “there is no guarantee that such a document might not have to be produced
either as a result of a public records request or other legal proceeding.”98 “In order to
attempt to minimize the possibility of this,” the Student Complaint Memo calls for “any
written directive” to Leslie Miles to be maintained exclusively in the law offices of Taylor
Porter and the law firm representing Leslie Miles.99
In a similar manner, the August 29, 2013 Directive Letter from the Board’s counsel
(Taylor Porter) to Leslie Miles’s counsel (Peter Ginsberg), provides in pertinent part:
The original and all copies of this letter will be maintained in the files of
your law offices and undersigned counsel’s law offices only. Miles, his
counsel, LSU, and its counsel, agree to keep this letter (and its contents)
confidential unless compelled to divulge it by final order of a court of
competent jurisdiction; any such order shall be contested by LSU’s counsel

95 At the request of the Court, Plaintiff’s counsel provided a copy of Joseph Alleva’s deposition transcript on
January 17, 2023, by email. A copy of that deposition transcript is attached to this Order and Reasons. See
R. Doc. 316-2 (deposition page numbers 133-34).
96 Id. (deposition page number 135).
97 R. Doc. 190-5 at p. 10.
98 Id.
99 Id. (emphasis added).
and, at Miles’ option, Miles’ undersigned counsel. Should your office, Miles,
our office, or LSU receive a public records request, subpoena, court order or
other legal process seeking this document, the recipient of the request shall
provide notice and a copy of the request to the other party and counsel for
the other party within twenty-four (24) hours of receiving the request.
Neither you, undersigned counsel, Miles, or LSU will release this document
without a final order of a court of competent jurisdiction requiring such
release.

Approximately eight years later, in 2021, a news agency filed a mandamus action
against the Board in the Nineteenth Judicial District Court, Parish of East Baton Rouge,
seeking the release “of the investigation report by the law firm Taylor Porter into former
LSU football coach Les Miles.”100 The mandamus action stemmed from the Board’s denial
of a journalist’s request for the “investigation report,” i.e., the Student Complaint Memo,
under the Public Records Law. At that time, Louisiana State University Assistant General
Counsel Johanna Posada denied the public records request, explaining “[t]he employee
record [sought] is not subject to disclosure under the Louisiana Public Records Law
pursuant to a right of privacy granted by the Louisiana Constitution.”101 It bears
mentioning that, in Posada’s email, the rationale expressed for non-disclosure of the
“employee record” is not predicated on the document either failing the definition of a
public record or falling into any statutory exemption, such as the exception for attorney
work product.102 Instead, the proffered rationale for non-disclosure is a loose reference to

100 This mandamus action is captioned “Kenny Jacob versus Thomas Galligan, Interim President, in his
official capacity as Custodian of Records for Louisiana State University” and bears case number 703-746.
“Federal courts may ‘take judicial notice of the public records in . . . prior state court proceedings.’” Romious
v. Williams, 2021 WL 6108025 (E.D. La. 04/13/21) (quoting Stiel v. Heritage Numismatic Auctions, Inc.,
816 F. App’x 888, 892 (5th Cir. 2020)). Accordingly, this Court may take judicial notice of the pleadings in
the state court mandamus action.
101 At the request of the Court, the Board’s counsel provided copies of the pleadings in the state mandamus
action. An exhibit to the petition for mandamus is an e-mail exchange between Johanna Posada and
journalist Kenneth Jacoby. A copy of that email exchange is attached to this Order and Reasons. See R. Doc.
316-3.
102 See Hilbun v. State ex rel. Div. of Admin., 745 So.2d 1189, 1190 (La. App. 1 Cir. 11/5/1999) (recognizing
that an employee’s right to privacy in employment records may prevent disclosure, but it does not alter the
definition of a public record).
the privacy rights of public employees in their employment file. Ultimately, the Board
voluntarily released a redacted version of the Student Complaint Memo, an unredacted
version of the Memo to File, an unredacted version of the Attachments, and an unredacted
version of the Directive Letter and attachments to the news agency before any judicial
determination was made.103
Moreover, in 2021, a report prepared by law firm Husch Blackwell at the behest of
the Board following “various Title IX-related incidents,”104 confirms “there was no file of
[the Taylor Porter investigation] at the University. Instead, [it] was intentionally stored

offsite.”105
As another section of this Court held in In re Katrina Canal Breaches Consolidated
Litigation (“Katrina Litigation”), at the prima facie stage, it is permissible to reach an
inference of criminal intent by looking at the facts and circumstances surrounding the
alleged criminal conduct. 106 In Katrina Litigation, in the aftermath of Hurricane Katrina,
defendant Lafarge illegally entered homes in the Ninth Ward to steal timepieces to “be
used in . . . litigation” out “of concern that the [timepieces]” would be “lost or destroyed”
during cleanup efforts.107 The presiding judge determined the attorney-client privilege
that protected “communications, portions of witness statements and tangible things
concerning [the defendant]’s unauthorized taking of the timepieces” was overcome by the
crime-fraud exception.108 In so doing, the court found the defendant, with the assistance

of its counsel, violated La. R.S. 14:62 and committed simply burglary.109 “A prima facie

103 R. Doc. 219-2 at p. 1. The redactions made in the version of the Student Complaint Memo produced in
the mandamus action and the version produced to Plaintiff in this case differ slightly.
104 R. Doc. 219-1 at p. 3.
105 Id. at p. 52.
106 In re Katrina Canal Breaches Consol. Litig., 2008 WL 4401970, at *11 (E.D. La. 9/22/2008).
107 Id. at *6.
108 Id. at *6, *13.
109 Id. at *11.
case of simple burglary or theft requires proof of criminal intent.”110 The court was able
to infer the requisite criminal intent because there was evidence the defendant’s
investigators entered into homes intentionally, took timepieces, and kept timepieces for
three years without any attempt to locate or notify the rightful owners.111
Applying the principles of Katrina Litigation to the case at bar, all of the
circumstances surrounding the concealment in 2013, taken together, enable the Court to
reach an “inference of criminal intent necessary to establish a prima facie case of” second
degree injury to a public record.112 Specifically, to reach this inference, the Court has

considered: (1) the circumstances surrounding the May 15, 2013 meeting; (2) the Memo
to File; (3) page eight of the Student Complaint Memo; (4) the Directive Letter; (5) the
long period of concealment; (6) Alleva’s deposition testimony; and (7) Husch Blackwell’s
confirmation that files relating to Taylor Porter’s investigation were intentionally stored
offsite. Accordingly, Sharon Lewis has presented sufficient prima facie evidence of an
intent by the Board to conceal the Memo to File, Student Complaint Memo, and
Attachments. By contrast, the Board provides no evidence and asserts no argument to
rebut this inference.
Second, Plaintiff has provided evidence establishing, on a prima facie basis, the
Memo to File, Student Complaint Memo, and Attachments all fit the definition of a public
record in La. R.S. 44:1 at the time of the alleged offense. La. R.S. 44:1 provides in relevant

part:
All . . . writings . . . prepared . . for use in the conduct, transaction, or
performance of any business, transaction, work, duty, or function which was
conducted, transacted, or performed by or under the authority of the
constitution or laws of this state, or by or under the authority of any
ordinance, regulation, mandate, or order of any public body or concerning

110 Id.
111 Id.
112 Id.
the receipt or payment of any money received or paid by or under the
authority of the constitution or the laws of this state, are "public records."113

No party disputes the Memo to File, Student Complaint Memo, and Attachments,
prepared by Taylor Porter at the behest of, and for, a public university fit this definition
of a public record.114 The Board argues, however, that an exception to this definition of a
“public record” exists for “attorney work product” prepared in anticipation of litigation.115
Specifically, La. R.S. 44:4.1 excepts from the definition of a public record “any writings,
records, or other accounts that reflect the mental impressions, conclusions, opinions, or
theories of an attorney or an expert, obtained or prepared in anticipation of litigation or
in preparation for trial.”116 The Board is correct in that an exception to the public records
law exists for attorney work product. However, the burden falls on the party asserting the
exception to establish its application.117 “As the party seeking to prevent disclosure, [that
party] bears the burden of proving that the records are exempt from the provisions of the
public records law.”118 Here, the exception for attorney work product can be broken down
into two elements: (1) mental impressions of a lawyer; (2) that are prepared in
anticipation of litigation or in preparation for trial.
It is undisputed that the Memo to File, Student Complaint Memo, and
Attachments reflect, in part, the mental impressions of a lawyer. It is disputed, however,

113 La. R.S. 44:1(A)(2)(a).
114 The Court rejects the Board’s reliance on Texaco, Inc. v. Louisiana Land & Exploration Co., 805
F.Supp.385 (M.D. La. 1992). Texaco only stands for the proposition that privileged information need not
be disclosed under Louisiana’s public records law. In this case, the Board does not argue the entirety of the
Memo to File, Student Complaint Memo, and Attachments, which were concealed in toto at Taylor Porter’s
law offices, is privileged. Instead, the Board argues only limited portions of the Student Complaint Memo
are privileged. Had the Board only concealed those privileged portions of the Student Complaint Memo,
perhaps its reliance on Texaco would have some merit. Accordingly, not only is Texaco not binding, but, in
the case at bar, Texaco is inapplicable.
115 See, e.g., R. Doc. 305 at p. 7.
116 La. R.S. 44:4.1.
117 See, e.g., Terrebonne Parish Consolidated Gov’t v. Duval, et al., 340 So.3d 1099, 1108 (La. App. 1 Cir.
2/18/2022) (“As the party seeking to prevent disclosure, [that party] bears the burden of proving that the
records are exempt from the provisions of the public records law.”).
118 Id.
whether the Memo to File, Student Complaint Memo, and Attachments were prepared in
anticipation of litigation or in preparation for trial, i.e., the second element of La. R.S.
44:4.1(C). Plaintiff argues the Memo to File, Student Complaint Memo, and Attachments
were not. The Board—the party carrying the burden of establishing the work product
exception applies—did not even attempt to argue the Memo to File, Student Complaint
Memo, and Attachments were prepared in anticipation of litigation or in preparation for
trial. Likely, this is because Louisiana courts have held internal investigative reports
prepared by lawyers and non-lawyers in the course of regular business are not “prepared

in anticipation of litigation or in preparation for trial.” For example, in Simmons v.
Transit Management of Southeast Louisiana, Inc., the Louisiana Court of Appeal for the
Fourth Circuit determined a company’s internal investigative report was not prepared in
anticipation of litigation.119 In reaching this conclusion, the Louisiana Fourth Circuit
considered whether the internal investigative report was prepared in the regular course
of business.120 In that case, the record indicated the investigative report “was prepared by
a non-lawyer, in the course of regular business whenever an accident occurs.”121 As a
result, the court found the document was not prepared in anticipation of litigation.122
In this case, the Memo to File, Student Complaint Memo, and Attachments were
prepared by counsel, but the Board does not present evidence or any argument that it was
outside the regular course of business for Taylor Porter to conduct internal investigations

of sexual harassment allegations that surfaced in the Athletics Department. To the
contrary, there is evidence suggesting it was, in fact, in the regular course of business: (1)
the Student Complaint Memo states that, in connection with Taylor Porter’s preparation

119 780 So.2d 1074, 1077 (La. App. 4 Cir. 2/7/2001).
120 Id.
121 Id.
122 Id.
of the Report, “Taylor Porter assum[ed] the role usually undertaken by the Human
Resources Department;”123 (2) Joseph Alleva testified in his deposition that, to his
knowledge, the Memo to File, Student Complaint Memo, and Attachments were not
prepared in anticipation of litigation;124 and (3) the Husch Blackwell report states “Taylor
Porter . . . did considerable legal work for the Athletics Department.”125 Whatever the case
may be, the Board has failed to carry its burden of coming forward with evidence to
establish the Memo to File, Student Complaint Memo, and Attachments fit the exception
to Louisiana’s Public Records Law at La. R.S. 44:4.1(C) because they constitute attorney

work product.126
Third, the Memo to File, Student Complaint Memo, and Attachments were
required to be preserved in a public office or by a person or public officer pursuant to La.
R.S. 44:36. This element addresses the time period during which a public record must be
preserved. Under La. R.S. 44:36, generally, “[a]ll persons and public bodies having
custody or control of any public record . . . shall exercise diligence and care in preserving
the public record for the period . . . of time specific by the law for public records.”127 If the
time period during which the Memo to File, Student Complaint Memo, and Attachments
were required to be preserved elapsed before the alleged offense began to occur, on May
15, 2013, then there can be no violation of La. R.S. 14:132. Subject to certain exceptions,
“public records shall be preserved and maintained for a period of at least three years from

the date on which the public record was made.”128 Plaintiff has provided evidence that the

123 R. Doc. 190-5 at p. 5.
124 R. Doc. 316-2 (deposition page numbers 128-29).
125 R. Doc. 219-1 at p. 51.
126 See Dutton v. Guste, 395 So.2d 683, 685 (La. 1981) (Marcus, J.) (reversing a lower court and ordering
inspection under the Public Records Law when there was no evidence that documents otherwise fitting the
definition of a public record were prepared in anticipation of litigation or in preparation for trial).
127 La. R.S. 44:36(A).
128 Id.
Memo to File, Student Complaint Memo, and Attachments were created on May 15, 2013
and the alleged offense began to occur on the same day.129 As a result, under no set of
circumstances had the time period for preservation of these documents elapsed when the
alleged offense occurred. Plaintiff has shown, on a prima facie basis, the Memo to File,
Student Complaint Memo, and Attachments were required to be preserved in a public
office or by a person or public officer pursuant to La. R.S. 44:36. The Board has not
provided any evidence or argument to rebut Plaintiff’s evidence.
At bottom, “[t]he burden of establishing a prima facie case of crime for this purpose

in the civil discovery context is not great and is certainly less than the standard that a
district attorney or other prosecutor would use in pursuing criminal charges.”130 For civil
discovery purposes, Plaintiff has made an independent prima facie showing that the
Board violated La. R.S. 14:132, injuring a public record, by preserving the Memo to File,
Student Complaint Memo, and Attachments in the law offices of Taylor Porter with an
intent to conceal. The Board has failed to rebut this showing.
III. Plaintiff has made a prima facie showing the May 15, 2013 meeting,
Memo to File, Student Complaint Memo, and Attachments were in
furtherance of a crime.

When a party makes a prima facie showing that a crime has been committed, she
must then demonstrate that the client intended to further a crime during the attorney-
client representation. “The test is whether the client’s purpose is the furtherance of a
[continuing or] future fraud or crime”131 because “the client is the holder of the
privilege.”132 This test involves a two-part showing: (1) that an attorney-client

129 R. Doc. 190-5 at p. 2.
130 In re Katrina Canal Breaches Consol. Litig., 2008 WL 4401970, at *10 (E.D. La. 9/22/2008).
131 Southern Scrap Material Co. v. Fleming, 2003 WL 21474479, at *2 (E.D. La. 2003) (internal citations
omitted).
132 In re Grand Jury Proceedings #5 Empanelled January 28, 2004, 401 F.3d 247, 251 (4th Cir. 2005).
communication was made in furtherance of a crime; and (2) that a purpose of the client
in that communication was the furtherance of that crime.133 Accordingly, the Court will
first consider whether the relevant communications between the Board and Taylor Porter
were made in furtherance of a crime. Second, the Court will consider whether a purpose
of the Board in those communication was the commission of that crime.
First, Plaintiff has provided sufficient evidence to establish the relevant
communications, i.e., the May 15, 2013 meeting, Memo to File, Student Complaint Memo,
and Attachments were in furtherance of a crime. The Memo to File by Vicki Crochet

documents the Board’s discussion of the Student Complaint Memo and the method by
which it and the Attachments were to be preserved.134 Because a document memorializing
the Board’s May 15, 2013 discussion of the Student Complaint Memo and Attachments—
the Memo to File—prescribes the concealment of those documents as the meeting
participants’135 approved method of preservation, they are plainly “in furtherance” of that
concealment. For the same reason, the May 15, 2013 meeting of, inter alia, some members
of the Board and Taylor Porter attorneys was in furtherance of the alleged offense because
during that meeting preservation by concealment was discussed and agreed to.
Second, the Court must consider the Board’s purposes in seeking the legal advice
that culminated in the communications. Taylor Porter investigated allegations made by a
student worker against Leslie Miles.136 That investigation resulted in the Student

Complaint Memo and Attachments, which were discussed by some members of the Board
with Taylor Porter attorneys and high-level university officials during a meeting on May
15, 2013. Plaintiff has presented evidence in the form of the Memo to File establishing

133 In re Katrina Canal Breaches Consol. Litig., 2008 WL 4401970, at *13.
134 R. Doc. 190-5 at p. 2.
135 Again, this meeting included members of the Board.
136 R. Doc. 190-5 at p. 3.
that, during that May 15, 2013 meeting with counsel present, it was agreed the Student
Complaint Memo and Attachments would be concealed in Taylor Porter’s law offices.137
After that meeting, the Memo to File dated May 15, 2013 memorialized the agreed-upon
method of preservation—concealment exclusively in Taylor Porter’s law offices.138 Alleva,
a participant during the May 15, 2013 meeting testified this was done, he believes, to
prevent public disclosure of Taylor Porter’s investigation, i.e., to injure a public record.139
Following the May 15, 2013 meeting, the Memo to File, Student Complaint Memo, and
Attachments were, in fact, concealed in Taylor Porter’s law offices for approximately eight

years. Only in 2021, in response to a lawsuit in which a journalist sought disclosure “of
the investigation report by the law firm Taylor Porter into former LSU football coach Les
Miles,” did the Board voluntarily release redacted versions of the documents and the
concealment, for the most part, end. This evidence is sufficient for the Court to find a
purpose of the Board in communicating with Taylor Porter on May 15, 2013, was to
further a crime; namely, concealment of a public record to prevent public disclosure of its
contents. In a situation such as this one, the crime-fraud exception is meant to be applied
because “the client has no legitimate interest in seeking legal advice in planning future [or
ongoing] criminal activities.”140
IV. The crime-fraud exception applies only to privileged
communications reasonably related to the fraudulent or criminal
activity.

“After the party seeking disclosure meets its prima facie showing that the client
intended to further an ongoing crime or fraud during the attorney-client relationship such
that the crime-fraud exception applies, the only attorney-client communications and

137 Id. at p. 2.
138 Id.
139 R. Doc. 316-2 (deposition page number 135).
140 See In re Intern’l Sys. & Controls Corp. Sec. Lit., 693 F.2d 1235, 1242 (5th Cir. 1982).
work product materials falling within the scope of the crime-fraud exception[, and thus
subject to disclosure,] are those shown to hold ‘some valid relationship’ to the prima facie
violation such that they ‘reasonably related to the fraudulent [or criminal] activity.’”141
“[T]he breadth of the crime-fraud exception’s scope [ ] stands for a sense of limitation or
condition.”142 Simply, the crime-fraud exception removes the privilege only from
privileged communications that reasonable relate to the crime, not all prior
communications between the lawyer and the client.143
“Courts have disagreed on the degree of relatedness required to meet th[is] stage

of the inquiry.”144 The Fifth Circuit has “on only rare occasions addressed what is
sufficient to establish that [a] privileged communication was reasonably related to” a
crime.145 “[T]he standard [must] not be too precise or rigorous. A finding that the
[privileged information] reasonably relates to the subject matter of the possible
violation[] should suffice.”146 In this case, Plaintiff seeks the unredacted versions of the
Student Complaint Memo and related-Taylor Porter billing records, as well as documents
underlying or associated with each. The Court will address each document in turn.
First, the Court finds the redacted privileged information in the Student Complaint
Memo does not reasonably relate to the concealment of the Memo to File, Student
Complaint Memo, and Attachments in Taylor Porter’s law offices. The Court has reviewed
the unredacted Student Complaint Memo in-camera and compared it to the redacted

version the Board produced to Plaintiff.147 The redactions made by the Board are of (1)

141 In re Grand Jury Subpoena, 419 F.3d 329, 346 (5th Cir. 2005) (emphasis added).
142 Id. at 344.
143 In re Int'l Sys. & Controls Corp. Sec. Litig., 693 F.2d at 1243.
144 See In re Sealed Case, 676 F.2d 793, 815 (D.C. Cir. 1982).
145 In re Boeing Company, 2021 WL 3233504, at *3 (5th Cir. 2021).
146 In re Sealed Case, 676 F.2d at 815.
147 R. Doc. 297.
personal identifiers of Student 2 and (2) privileged legal advice. The parties agree
redactions of personal identifiers of Student 2 are proper and, regardless of the outcome
reached herein, should remain in place. Further, without divulging the contents of the
privileged legal advice, after careful consideration, the Court finds no reasonable
relationship exists between the redacted legal advice and the crime of injuring a public
record. The only portions of the Memo to File, Student Complaint Memo, and
Attachments that reasonably relate to the crime are those portions of the Memo to File
detailing preservation exclusively in the law offices of Taylor Porter and page 8 of the

Student Complaint Memo referencing an attempt to minimize the possibility of disclosure
under the Public Records Law. These have already been produced to Plaintiff in an
unredacted form. The crime-fraud exception does not extend far enough to reach the
privileged legal advice redacted from the Student Complaint Memo because those
redactions are about the legal effects of Student 2’s allegations, not about concealment.
Second, the Court finds the privileged information in the Taylor Porter billing
records does not reasonably relate to the concealment of the Memo to File, Student
Complaint Memo, and Attachments in Taylor Porter’s law offices. The relevant Taylor
Porter billing records identified by Plaintiff are those from the months of July and August
of 2013. The Court has reviewed the unredacted Taylor Porter billing records in-camera
and compared them to the redacted version the Board produced to Plaintiff.148 Without

divulging the contents of those privileged materials, the Court has considered each entry
carefully and determined the relationship between them and the crime of injury to a
public record is too far attenuated to support a finding that the crime-fraud exception
applies.

148 R. Doc. 312.
Third, Plaintiff seeks documents underlying or associated with the Memo to File,
Student Complaint Memo, Attachments, and Taylor Porter billing records. In so doing,
Plaintiff fails to identify particular documents she contends are reasonably related to the
crime of injury to a public record. At this time, the Court defers ruling on Plaintiff's
request for these documents because the Court cannot determine whether a reasonable
relationship exists between them and the prima facie violation of La. R.S. 14:132.
CONCLUSION
IT IS ORDERED that the Board’s Motion for Protective Order is GRANTED
with respect to preventing Plaintiffs discovery of the redacted portions of the Student
Complaint Memo.
IT IS FURTHER ORDERED that the Board’s Motion for Protective Order is
GRANTED with respect to preventing Plaintiffs discovery of the redacted Taylor Porter
billing records.
IT IS FURTHER ORDERED that the Court DEFERS ruling on Plaintiffs
request for documents underlying or associated with the Memo to File, Student
Complaint Memo, Attachments, and Taylor Porter billing records.
IT IS FURTHER ORDERED that a video status conference is set for
Wednesday, March 15, 2023, at 2:00 p.m., to discuss any remaining discovery
issues. The Court already has provided counsel with the instructions necessary to
participate.
New Orleans, Louisiana, this 13th day of March, 2023.
Susie —_
SUSIE rion
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192563. Public record. Not legal advice.