Mays v. The Cabell County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

HERMAN MAYS, JR., on his own behalf and as

next friend and parent of C.M.;

ELIZABETH MAYS, on her own behalf and as

next friend and parent of C.M.;

BETHANY FELINTON, on her own behalf and as

next friend and parent of S.F., E.F., and C.F.;

JANA TIGCHELAAR, on her own behalf and as

next friend and parent of C.T. and S.T.; and

MAX NIBERT,

Plaintiffs,

v. Case No.: 3:22-cv-00085

THE CABELL COUNTY BOARD OF EDUCATION;

DANIEL GLEASON, in his individual capacity; and

JEFF JONES, in his individual capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiffs’ Motion to Compel, (ECF No. 112).

Defendant Cabell County Board of Education has filed a response in opposition to the

motion, (ECF No. 118), and Plaintiffs have submitted a reply memorandum, (ECF No.

120). Therefore, the motion is fully briefed and ready for resolution. For the following

reasons, the Court GRANTS the motion to compel as set forth below.

I. Relevant Facts and Procedural History

A. Amended Complaint

Plaintiffs allege that Defendants Cabell County Board of Education (hereinafter

the “CCBOE”); Daniel Gleason, Principal of Huntington High School; and Jeff Jones, a

substitute teacher employed by Cabell County Schools, systematically disregard the

religious freedom of their students by promoting evangelical Christianity and coercing

students to participate in Christian religious activities at school. (ECF No. 16 at 1, 3-4).

In the one-count Amended Complaint filed pursuant to 42 U.S.C. § 1983, Plaintiffs allege

that Defendants violated under color of state law the Establishment Clause of the First

Amendment to the United States Constitution, as it applies to the States through the

Fourteenth Amendment. (Id. at 24-25). They seek declaratory relief, a permanent

injunction, nominal damages of $1.00 against each Defendant for each Plaintiff, costs

and attorneys’ fees, and any other relief the Court deems just and proper. (Id. at 25-26).

Plaintiffs specifically plead the following facts:

‐ Nik Walker Ministries was permitted to conduct evangelical religious

“revival” assemblies during school hours at CCBOE schools, including

in the Huntington East Middle School gymnasium on February 1,

2022, and the Huntington High School auditorium on February 2,

2022. (Id. at 4, 7, 11). The Huntington High School assembly occurred

during the homeroom period that is called “COMPASS.” (Id. at 7). The

purpose of both assemblies was to recruit students to the religion, and

many students were not given the option to abstain from participating.

(Id. at 7-8, 11). Nik Walker Ministries was also allowed to “preach” to

students during school hours at several CCBOE schools in 2022. (Id. at

4).

‐ Gary Carpenter, a physical education teacher at Huntington East

Middle School, is permitted to hold religious meetings with students

during the school day for the “Fellowship of Christian Athletes (FCA),”

an organization that he operates to recruit students to his faith. (Id. at

12).

‐ Daily staff-led prayer takes place around the flagpole or inside the

school at Huntington High School. (Id. at 12-13).

‐ A speaker for the fifth grade graduation ceremony at Southside

Elementary School spoke “extensively about God and encouraged the

fifth graders to listen to their priests and pastors.” (Id. at 14).

‐ Religious clubs called Generation NXT are permitted to operate in

CCBOE schools. (Id. at 14).

‐ Huntington High School held a religious-themed assembly on March

2, 2017 during which the speaker stated, “[f]or those who believe God

isn’t real, he is real” and “[h]ow many of you believe Jesus Christ will

save you from your sins?” (Id. at 15).

‐ An assembly at Huntington High School in the fall of 2016 included

Christian rappers promoting Christianity and presenters who told

students to pray. (Id. at 16).

Overall, Plaintiffs contend that the CCBOE and its administrators have a

widespread custom and practice of allowing adults into schools to “preach” to students

and allowing teachers to initiate and lead religious activity for students as part of school

programming. (Id. at 10). They note that Huntington High School does not generally

allow other non-school affiliated assemblies, and, when the Nik Walker assembly was

permitted to be held, student clubs were not even fully operational in the school due to

Covid-19 protocols. (Id. at 18).

According to Plaintiffs, Defendants’ preference for and promotion of these

religious activities has divided the student body and caused repercussions for students

who are not part of the preferred evangelical Christian religion and for students who

speak out against the infringement of their constitutional rights. (Id. at 19, 21-23).

Allegedly, more than 100 students participated in a “walkout” at Huntington High

School on February 9, 2022 to protest school sponsorship of religious activity. (Id. at 19-

20).

B. Motion to Compel

On September 6, 2022, Plaintiffs served their first set of interrogatories and

requests for production of documents on the CCBOE. (ECF No. 51). After the CCBOE

responded on October 6, 2022, the parties attempted to informally resolve certain

disputes concerning the discovery requests and responses. The CCBOE filed two

supplemental responses, and the remaining issues were asserted in Plaintiffs’ instant

motion to compel filed on February 6, 2023. (ECF No. 112). Plaintiffs seek responses to

interrogatory numbers 2, 3, and 4, as well as request for production of document

numbers 1(a), (c), and (d); 2(a), (c), and (d); 3, 4, 5, and 7. (ECF No. 112 at 5-11).

In response, the CCBOE contends that the motion is untimely, and, even if it was

timely, Plaintiffs are not entitled to the relief that they seek. (ECF No. 118). The CCBOE

presents five general reasons that the motion should be denied: (1) it is willing to provide

some of the information, namely student names, pursuant to the entry of a protective

order; (2) it has produced all other non-privileged responsive information in its custody,

possession, or control, but it has not produced electronic communications because it

does not have “control” of the email system used by its staff; (3) it has requested

information from the West Virginia Department of Education (hereinafter the

“WVDE”), which maintains the email system, and it will review and supplement non-

privileged responsive information; (4) it continues to search for responsive documents;

and (5) some of the information sought by Plaintiffs is shielded by the attorney-client

privilege and the work product doctrine because litigation was anticipated.

Plaintiffs argue in reply that the CCBOE presents more of the same superficial

and incorrect arguments that it has used to delay discovery for approximately six

months. (ECF No. 120). Also, Plaintiffs note that the CCBOE now argues for the first

time that it does not have possession, custody, or control of its own email system. (Id.).

According to Plaintiffs, the CCBOE’s response to the motion to compel further

demonstrates the moving target that Plaintiffs have faced trying to obtain reasonable

responses to their discovery requests. (Id.).

II. Discussion

Rule 26(b)(1) of the Federal Rules of Civil Procedure outlines the scope of

discovery:

[U]nless otherwise limited by court order, the scope of discovery is as

follows: Parties may obtain discovery regarding any nonprivileged matter

that is relevant to any party’s claim or defense and proportional to the

needs of the case, considering the importance of the issues at stake in the

action, the amount in controversy, the parties’ relative access to relevant

information, the parties' resources, the importance of the discovery in

resolving the issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit. Information within this

scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “Relevancy under this rule has been broadly construed to

encompass any possibility that the information sought may be relevant to the claim or

defense of any party.” Becton, Dickinson & Co. v. BioMedomics, Inc., No. 5:20-CV-536-

FL, 2021 WL 3864476, at *3 (E.D.N.C. Aug. 30, 2021) (citations omitted). Yet, even if

seeking relevant information, the discovery request must be proportional to the needs

of the case. Fed. R. Civ. P. 26(b)(1).

A party dissatisfied with a discovery response or lack of response can move for an

order compelling disclosure or discovery after attempting to confer with the party that

submitted the response or failed to respond. Fed. R. Civ. P. 37(a). Under the local rules

of this Court, a motion to compel must be filed within 30 days of the discovery responses

being due, or the motion is waived. L. R. Civ. P. 371(c). However, the 30-day deadline

may be extended by Court order for good cause shown or by stipulation of the parties,

so long as the extension does not interfere with the scheduling order. Id.

In the event of a discovery dispute, the party resisting discovery, not the party

seeking discovery, bears the burden of persuasion. Tinsley v. OneWest Bank, FSB, No.

3:13-CV-23241, 2014 WL 7005852, at *2 (S.D.W. Va. Dec. 10, 2014) (citations omitted).

As such, conclusory and unsubstantiated allegations are simply insufficient to support

discovery objections based on the grounds of annoyance, burdensomeness, oppression,

or expense. Id.

A. Timeliness of Motion

In this district, motions to compel must be filed within 30 days of the discovery

responses being due unless the parties or Court extend the timeframe. L. R. Civ. P.

371(c). The parties agreed by stipulation to extend the deadline for Plaintiffs to file a

motion concerning their first discovery requests to allow the CCBOE to file supplemental

responses to potentially resolve some of the disputed issues. The stipulation specified

that: (1) Plaintiffs had 10 days after service of the supplemental responses to send any

letter or correspondence to the CCBOE’s counsel regarding any perceived deficiencies in

the supplemental responses, and (2) if the parties could not resolve the dispute,

Plaintiffs had “an additional ten (10) days after the letter or correspondence [was] sent

to counsel for the CCBOE” to file a motion to compel. (ECF No. 58 at 3).

The CCBOE’s first supplemental responses were served on January 9, 2023. (ECF

No. 85). Plaintiffs sent a letter to the CCBOE’s counsel on January 19, 2023, asserting

deficiencies in the responses. See (ECF No. 118 at 3). Per the stipulation, the 10-day

“clock” for Plaintiffs to file a motion to compel regarding the discovery requests began

the following day on January 20, 2023. The deadline expired on January 29, 2023,

which was a Sunday. Thus, if moved to the next business day, Plaintiffs had until January

30, 2023 to file a motion concerning the discovery requests. However, Plaintiffs did not

file the motion to compel until February 6, 2023. (ECF No. 112).

Plaintiffs argue that the motion was timely filed because the reasonable

interpretation (and their actual interpretation) of the stipulation was that they had 10

days from the CCBOE’s response to their letter on January 27, 2023 to seek court

intervention. (ECF No. 120 at 2). That reasoning is inconsistent with the clear language

of the stipulation that specified that the motion to compel was due 10 days “after the

letter or correspondence [was] sent to counsel for the CCBOE,” not 10 days after the

CCBOE responded to such letter. (ECF No. 58 at 3). Nonetheless, the Court has

discretion to modify the time frame for good cause, so long as it will not interfere with

the scheduling order.

The discovery deadline in this case is not until June 20, 2023. (ECF No. 110 at 1).

Thus, extending the motion to compel deadline by one week so that Plaintiffs’ motion is

deemed timely in no way impacts the scheduling order. Further, the Court finds that

good cause exists for Plaintiffs’ slight delay in filing the motion. Under the terms of

stipulation, Plaintiffs had only one business day to prepare and file the motion to compel

after receiving the CCBOE’s supplemental discovery responses on January 27, 2023. See

(ECF No. 120 at 3).

To harshly enforce the stipulated deadline would punish Plaintiffs for allowing

the CCBOE to supplement their discovery responses for a second time and genuinely

attempting to resolve the dispute without court intervention. Plaintiffs could have filed

the motion to compel after the CCBOE’s first supplemental responses did not address

the alleged deficiencies. Instead of doing so, Plaintiffs allowed further supplementation

to hopefully avoid the discovery motion altogether, or at least narrow the issues before

the Court. It would be inequitable to refuse to consider the motion to compel based upon

these facts. Frankly, it appears disingenuous for the CCBOE to not extend Plaintiffs the

same courtesy it has clearly received in the discovery process. See, e.g., Ayers v. Cont'l

Cas. Co., 240 F.R.D. 216, 225 (N.D.W. Va. 2007) (allowing late motion to compel where

delay was due to party trying to negotiate the dispute with opposing counsel).

Furthermore, there is no evidence of any pattern of bad faith, deliberate delay, or

other nefarious tactics by Plaintiffs. They evidently operated under the mistaken belief

that the motion was due by February 6, 2023, and they filed it on that deadline. For

those reasons, and the additional fact that the motion is meritorious, the Court finds

that Plaintiffs’ delay in filing this motion is excusable and the motion is timely.

B. Interrogatory Nos. 2, 3, & 4

Interrogatory numbers 2, 3, and 4 ask the CCBOE to identify people who attended

and/or organized, scheduled, or conducted certain Nik Walker Ministries revivals

mentioned in the Amended Complaint. (ECF No. 112-5 at 1-4). The CCBOE identified

the adults that were involved in the revivals, but it has not yet identified the minors to

protect their privacy from public dissemination. The CCBOE agrees to provide this

information subject to entry of the agreed Protective Order, which has now been entered.

(ECF No. 118 at 6). As such, the Court GRANTS Plaintiffs’ motion to compel regarding

these requests and ORDERS the CCBOE to supplement its responses to these

interrogatories within 14 days of this Order.

C. Request for Production No. 1(a)

This request seeks documents concerning the planning and scheduling of the Nik

Walker Ministries revival held at Huntington High School on February 2, 2022. (ECF

No. 112-7 at 1). In its second supplemental response, the CCBOE stated that “[a]ll

documents known to [the CCBOE] have, at this time, been produced,” and the CCBOE

“understands the duty to further supplement its disclosure should additional documents

responsive to this request which are not otherwise privileged be discovered.” (Id. at 2).

Likewise, in response to Plaintiffs’ motion to compel, the CCBOE asserted that it has

“complied with the request, has provided documents known to it [that are] responsive

to this request, and further acknowledges its obligation to continue to produce any

additional documents responsive to this request in accordance with Rule 26(e) of the

Federal Rules of Civil Procedure.” (ECF No. 118 at 7). The CCBOE “further acknowledges

its obligation to so supplement its response,” but it cannot “produce something it either

doesn’t have [sic].” (Id.).

Further information in the CCBOE’s response to the motion to compel indicates

that all responsive information has not been produced, as it suggests. The CCBOE

included the caveat that it does not have access to responsive emails because they are

managed by a third party, the WVDE. (Id. at 8). The CCBOE maintains that such

electronic information is therefore not in its possession, custody, or control and it cannot

produce, nor be compelled to produce, it. (Id.). The CCBOE attached an affidavit from

its Director of Technology, Jason Jackson. (ECF No. 118-4). According to Mr. Jackson,

“[e]lectronic information, such as e-mails, are not maintained or possessed by the

[CCBOE],” but are instead maintained by the WVDE. (Id. at 1). Mr. Jackson asserts that

the CCBOE does not have “immediate, direct, or indirect access to any emails

maintained by the WVDE absent a formal Petition or Subpoena Duces Tecum” and the

CCBOE “has no right to possess or otherwise access any emails maintained by the West

Virginia Department of Education.” (Id. at 2). The CCBOE states that it issued a

subpoena to the WVDE to obtain electronic communications which may be responsive

to this request. (ECF No. 118 at 8). However, it later stated in response to another

discovery request that it simply “reached out” to the WVDE for information. (Id. at 12).

Plaintiffs argue that the CCBOE’s newest position that it lacks control over

employee emails is without merit. (ECF No. 120 at 8). Plaintiffs cite the CCBOE’s own

policies indicating that it has the right to access and review staff emails. (Id. at 9).

Moreover, Plaintiffs note that the CCBOE’s employees access and use their email every

day; thus, even if the CCBOE does not have access to the WVDE’s servers, the CCBOE

has “control over its employees’ emails by virtue of employees’ access to their own

emails.” (Id. at 9-10).

Rule 34 of the Federal Rules of Civil Procedure requires a party to produce

documents that are within the party’s “possession, custody, or control.” Fed. R. Civ. P.

34(a)(1). “Rule 34 ‘control’ does not require a party to have legal ownership or actual

physical possession of any [of the] documents at issue.” Lynn v. Monarch Recovery

Mgmt., Inc., 285 F.R.D. 350, 361 (D. Md. 2012) (citation omitted). Rather, “documents

are considered to be under a party’s control when that party has the right, authority, or

practical ability to obtain the documents from a non-party.” Id. “Therefore, a party may

be required to obtain information from third parties if the party has a legal right or

ability to obtain that information.” Barnett v. Cabell Cnty. Comm’n, No. CV 3:22-0203,

2023 WL 1073705, at *2 (S.D.W. Va. Jan. 27, 2023) (citation omitted). “The party

seeking production of information has the burden to prove that the responding party

has sufficient control over that information.” Id.

Notably, the CCBOE did not assert its supposed lack of possession, custody, or

control over responsive documents in its initial response to this discovery request. (ECF

No. 112-2 at 4). Then, in its first supplemental response, the CCBOE stated that it would

make the documents available for inspection and copying at a mutually agreeable date

and time. (ECF No. 112-5 at 6). It was not until the CCBOE’s second supplemental

response that the CCBOE vaguely mentioned that the request “includes documents

which may not be in the possession” of the CCBOE. (ECF No. 112-7 at 2).

As explained, Rule 34 is not limited to documents that are in a party’s possession.

The CCBOE has entirely failed to support its argument, which is never substantively

articulated until it responded to this motion to compel, that it does not have “possession,

custody, or control” of emails that are responsive to this request. Moreover, Plaintiffs

have met their burden of showing that the CCBOE has sufficient control of the

information. As Plaintiffs explained, the CCBOE’s policies belie its position that it has

no way to access the emails of its staff, administrators, and Board members or request

the emails from the WVDE. For instance, the CCBOE has the explicit right to access and

review any electronic communications contained in or used in conjunctions with its

computer system/network or email system, excluding personal accounts used

exclusively for personal communications unrelated to any business purposes of the

employee. Policy Manual, Cabell County Schools, § 7540.01 (last revised Aug. 21, 2018),

available at https://go.boarddocs.com/wv/cab/Board.nsf/Public?open&id=policies#.

District staff and Board members are directed to use their school email to communicate

regarding matters relating to their official duties, and they must retain and produce

certain emails when requested by the District, such as in the case of a litigation hold. Id.

at § 7540.05. The CCBOE recognizes that it has a duty to implement a litigation hold

when served with a lawsuit in order to identify and preserve information relevant to a

specific matter. Id. at § 8315. That includes identifying third parties with custody or

control over electronically stored information and request that the third party preserve

the information. Id.

It is clear from the CCBOE’s own policies that it has means to access responsive

emails, whether that task requires it to request the emails from its employees or contact

the WVDE. Furthermore, the CCBOE’s claim that it has no access to the emails of its

staff, administrators, and Board members is dubious given the relationship of it to the

WVDE. The CCBOE and WVDE, the “third party” that supposedly maintains the email

system, are not entirely unrelated entities. The WVDE is the government agency that

oversees the entire public school system in West Virginia, including each county board

of education, such as the CCBOE. The CCBOE’s argument that is has no means to obtain

the emails of its own employees which are supposedly held by its parent agency is

unavailing.

Indeed, the CCBOE later states that, although the CCBOE has “no automatic legal

right to the documentation,” it “reached out to the WVDE” to try to obtain electronic

communications which may be responsive to another discovery request, and it

anticipated receiving the information. (ECF No. 118 at 12). It is unclear why the CCBOE

has not followed this same procedure regarding Request for Production No. 1(a), if it has

not done so.

For those reasons, the CCBOE must search for and produce documents, including

emails, which are responsive to this discovery request. To the extent that the documents

include attorney-client privileged communications and/or work product created in

anticipation of litigation, the CCBOE can redact or withhold the privileged information

and assert such claims with sufficient specificity in an accompanying privilege log. The

Court GRANTS the motion to compel regarding this request and ORDERS the CCBOE

to supplement its response within 14 days of this Order.

D. Request for Production No. 2(a)

Plaintiffs also seek documents concerning the planning and scheduling of the Nik

Walker Ministries revival held at Huntington East Middle School on February 1, 2022.

(ECF No. 112-7 at 3). The CCBOE states that it is still searching for responsive

documents, but no documents have been located, and it will supplement its response if

any documents are discovered. (ECF Nos. 112-7 at 4, 118 at 7-8). The CCBOE expressed

the same caveat that it does not have possession, custody, or control over the emails of

its staff, administrators, and Board members, making clear that it has not searched that

category of documents for responsive information. For the reasons discussed, the Court

finds that the CCBOE has means to access the emails, either through its employees or

requesting them from the WVDE, and it should be compelled to search for and provide

any responsive information. Any valid claims of privilege and/or work product can be

documented in a proper privilege log. The Court GRANTS the motion to compel

regarding this request and ORDERS the CCBOE to supplement its response within 14

days of this Order.

E. Request for Production Nos. 1(c) and 2(c)

These requests seek documents concerning any investigation by employees of the

CCBOE related to the Nik Walker Ministries revival at Huntington High School on

February 2, 2022 and any investigation related to the Nik Walker Ministries revival at

Huntington East Middle School on February 1, 2022. (ECF No. 112-2 at 4-5). The CCBOE

asserted in its initial responses that the requests sought information that was protected

by the work-product doctrine and/or the attorney-client privilege. (Id. at 5-6). However,

it did not produce a privilege log concerning such information until Plaintiffs raised the

issue on multiple occasions. (ECF No. 120-3 at 4-5). The CCBOE claims that all of the

documents that are responsive to these requests are protected by the attorney-client

privilege or work product doctrine. (ECF No. 118 at 8-9). It lists in its privilege log that

it withheld the following documents on the basis of “attorney-client privilege and work

product:”

1. Emails to and from clients on numerous dates

2. Letters to and from clients on numerous dates

3. Investigation of Huntington High School and Huntington East

Middle School assemblies by Cabell County Board of Education

after threat of litigation

4. Memos to File on various dates reflecting work product and attorney

mental impressions

(ECF No. 120-3 at 4).

Plaintiffs argue that the privilege log is woefully inadequate and untimely, and

the CCBOE’s claims of privilege should be deemed waived. (ECF No. 112 at 9). Plaintiffs

alternatively ask the Court to inspect the documents to determine whether a valid claim

of privilege exists. (Id.). In response, the CCBOE defends its privilege claims. It notes

that Plaintiff Herman Mays, Jr., wrote Defendant Daniel Gleason via email on the

morning of February 3, 2022 taking issue with the Nik Walker Ministries revival at

Huntington High School, pointing out the legal contours of the Establishment Clause,

and noting that he contacted the Freedom from Religion Foundation, American Civil

Liberties Union, other organizations, as well as the CCBOE’s Superintendent Ryan Saxe

concerning the matter. (ECF Nos. 118 at 9, 118-5 at 1-2). According to the CCBOE, it

became clear upon receipt of that email that litigation was imminent, and this lawsuit

was indeed filed two weeks later. (ECF No. 118 at 9). The CCBOE asserts that it

investigated in anticipation of litigation, and reports were sent to its general counsel.

(Id. at 9-10). As a result, the CCBOE states that “the documents produced during this

investigation, as well as the results therefrom, are protected by the attorney-client

privilege and work product doctrine.” (Id. at 10).

While there is little doubt that some of the documents identified in the privilege

log may be shielded from discovery, the CCBOE does not provide the necessary

information to make that determination. “When a party withholds information

otherwise discoverable by claiming that the information is privileged or subject to

protection as trial-preparation material, the party must: (i) expressly make the claim;

and (ii) describe the nature of the documents, communications, or tangible things not

produced or disclosed--and do so in a manner that, without revealing information itself

privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P.

26(b)(5)(A). As previously explained by this Court, “[a] privilege log meets this standard,

even if not detailed, if it identifies the nature of each document, the date of its

transmission or creation, the author and recipients, the subject, and the privilege

asserted.” Murphy v. Setzer’s World of Camping, Inc., No. 3:20-CV-00406, 2021 WL

2042732, at *2–3 (S.D.W. Va. May 21, 2021) (citations omitted). Of course, “the creation

of an adequate privilege log requires a delicate balancing act—on the one hand, the

withholding party must not supply too little or indecipherable information, and on the

other, the withholding party must not reveal too much detail for fear that the privileged

information itself may seep into the log.” Id. at *3.

In this case, the CCBOE’s Privilege Log practically meets none of the Rule 26

requirements. There is very little information to be gleaned other than the CCBOE’s

indication that the documents broadly include some unidentifiable number of emails,

letters, memos, and a CCBOE investigation of the Huntington High School and

Huntington East Middle School assemblies “after threat of litigation.” (ECF No. 120-3

at 4). There is no indication of the date, author, recipient, or subject/nature of the

documents. (Id.).

In addition, the CCBOE claims that every document, in its entirety, constitutes

both attorney-client privileged communications and work product. The Court cautions

that the attorney-client privilege does not apply to swaths of information simply because

litigation was filed. Rather, the privilege shields from discovery communications

between a lawyer and client that are confidential and made for the purpose of securing

legal advice. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). Employees

within a corporation may “communicate privileged information at various levels [of the

corporation] without waiving the attorney-client privilege.” See e.g. Santrade, Ltd. v.

General Electric Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993) (citation omitted); Deel v.

Bank of Am., N.A., 227 F.R.D. 456, 460 (W.D. Va. 2005). Information that is

documented in anticipation of litigation can qualify as work product. Nicholas v.

Bituminous Cas. Corp., 235 F.R.D. 325, 331 (N.D.W. Va. 2006). “Opinion work

product,” which is defined as “the mental impressions, conclusions, opinions or legal

theories of an attorney or other representative of a party concerning the litigation”

receives the greatest work-product protection. Id. at 332 (citing In re Grand Jury

Proceedings, 33 F.3d 342, 348 (4th Cir.1994)).

For those reasons, the CCBOE’s Privilege Log is clearly inadequate. “When a party

provides an inadequate or untimely privilege log, the Court may choose between four

remedies: (1) give the party another chance to submit a more detailed log; (2) deem the

inadequate log a waiver of the privilege; (3) inspect in camera all of the withheld

documents; and (4) inspect in camera a sample of the withheld documents.” Johnson v.

Ford Motor Co., 309 F.R.D. 226, 234–35 (S.D.W. Va. 2015). “Given the sanctity of the

attorney-client privilege and the seriousness of privilege waiver, courts generally find

waiver only in cases involving unjustified delay, inexcusable conduct and bad faith.” Id.

at 235 (quoting Smith v. James C. Hormel Sch. of Va. Inst. of Autism, No. 3:08cv00030,

2010 WL 3702528, at *5 (W.D. Va. Sept. 14, 2010) (collecting cases)).

The Court finds that, despite its errors, the CCBOE should be given the

opportunity to submit a more detailed privilege log to Plaintiffs. In preparing the log,

the CCBOE should be mindful of the Rule 26 requirements and the law governing

attorney-client privilege and the work product doctrine, or it risks waiving those

protections. The Court GRANTS the motion to compel to the extent that it ORDERS

the CCBOE to produce the responsive documents or submit a privilege log that complies

with the Federal Rules of Civil Procedure within 14 days of this Order.

F. Request for Production Nos. 1(d) and 2(d)

Plaintiffs seek documents “concerning any action taken by [CCBOE] employees”

related to the Nik Walker Ministries revivals at Huntington East Middle School on

February 1, 2022 and Huntington High School on February 2, 2022. (ECF No. 112-2 at

3-5). The CCBOE lodged a litany of boilerplate objections to the requests, stating that

they were overly broad in scope, unduly burdensome, vague, made inaccurate and

improper statements of fact, sought private and irrelevant information, and sought

documents “which are of a remedial measure, inadmissible pursuant to Rule 407 of the

Federal Rules of Evidence.” (Id. at 4-6). In its second supplemental responses, the

CCBOE stated that “[w]ithout waiving said objections, none.” (ECF No. 112-7 at 3-4).

The CCBOE elaborated in response to this motion to compel that it “has no other

documents responsive to the request.” (ECF No. 118 at 11). The CCBOE stated that it

“has not made any changes to its policies, and, hence, has no documents regarding the

redress of any complaints flowing from the Nik Walker assemblies other than

investigative reports which are otherwise protected as discussed above.” (Id.).

The CCBOE did not specifically object to Request for Production of Documents

numbers 1(d) and 2(d) on the basis of attorney-client privilege or work product, which

it evidently now asserts.1 (ECF Nos. 112-2 at 4-6; 112-5 at 7, 9; 112-7 at 3, 4). However,

as noted, the CCBOE asserted in response to other discovery requests that its

investigation related to the Nik Walker Ministries “assemblies” was protected under the

attorney-client privilege and work product doctrine. Those investigation materials are

purportedly the only documents which might be responsive to Request for Production

of Documents numbers 1(d) and 2(d), according to the CCBOE’s response to the motion

to compel. (ECF No. 118 at 11). Therefore, it would be an unnecessarily harsh result to

rule, at this point, that the CCBOE has waived attorney-client privilege and/or work

product protections relating to its investigation because it did not reiterate the objection

with respect to other subparts of the same discovery requests.

The CCBOE made no effort in response to the motion to compel to support the

many general objections that it raised, including the improper objection that Plaintiffs

seek information that is inadmissible. See Fed. R. Civ. P. 26(b)(1) (“Information within

this scope of discovery need not be admissible in evidence to be discoverable.”). Rather,

the CCBOE has essentially shifted its argument to assert that it has no responsive

documents other than those which are privileged or work product. The Court will permit

the CCBOE one opportunity to properly support its claim of privilege. The Court

GRANTS the motion to compel to the extent that it ORDERS the CCBOE to produce

the responsive documents or submit a privilege log that complies with the Federal Rules

1 The CCBOE made no effort in response to the motion to compel to support the numerous other general

objections that it raised, including the improper objection that the discovery request seeks information

that is inadmissible. See Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need not be

admissible in evidence to be discoverable.”).

of Civil Procedure within 14 days of this Order.

G. Request for Production No. 3

Plaintiffs seek documents concerning any Fellowship of Christian Athletes (FCA)

club meetings or events held at Huntington High School from August 15, 2016 to the

present. (ECF No. 112-5 at 9). The CCBOE initially objected that the request was vague,

overly broad, and burdensome, but it later produced documents via supplemental

response and stated that it continues to search for additional documentation in its

possession. (Id.). In response to the motion to compel, the CCBOE states that it recently

also provided a third supplemental response to Plaintiffs’ first set of discovery requests

which included responsive calendar entries, and it will supplement any additional

documents it locates. (ECF No. 118 at 11). In continuation, the CCBOE asserts that any

documents sent or received by any faculty advisor concerning FCA meetings or events

would be in the control of third parties, such as the WVDE or FCA, and the CCBOE does

not have possession, control, or access to that information. (Id.). Despite that, the

CCBOE claims that it reached out to the WVDE and anticipates receiving records, which

it will review and supplement the non-privileged documents. (Id. at 12).

As discussed, the Court is not persuaded that the CCBOE does not have control

over the documents held by the WVDE because it can request them, which is evidently

what the CCBOE did in this instance. Furthermore, the CCBOE’s assertion that it will

supplement its response without any target date is insufficient. Unless it sustains a valid

objection to a discovery request, a party is obligated to search for and provide responsive

information within the timeframe provided in the Federal Rules of Civil Procedure, not

on its own timeline. The CCBOE does not articulate any objections to the discovery

request in response to the motion to compel, and it clearly can access additional

information that it did not produce. Therefore, supplementation is required. The Court

GRANTS the motion to compel regarding this request and ORDERS the CCBOE to

supplement its response within 14 days of this Order.

H. Request for Production Nos. 4 and 5

These requests seek all “calendars, notices, or other documents” concerning (1)

student club meetings or events during COMPASS time at Huntington High School and

(2) any events held in the Huntington High School auditorium during COMPASS time.

(ECF No. 112-5 at 10). Both requests are limited to the time period of August 15, 2020

to February 25, 2022. (Id.).

Plaintiffs note that the only documents that they received regarding the Nik

Walker Ministries revivals were documents sent to the CCBOE, but they did not receive

any documents that the CCBOE or its employees created. (ECF No. 112 at 5). In addition,

the CCBOE did not produce documents related to the FCA meetings or any meetings

held during the COMPASS period. (Id. at 9). In response, the CCBOE simply states that

it produced via third supplemental response the calendar entries of club meetings,

assemblies, and other use of the Huntington High School auditorium. (ECF No. 118 at

11, 12). The CCBOE asserts that it will supplement any additional documents that it

locates, which are responsive to the requests. (Id. at 12).

On one hand, Plaintiffs express concern that the CCBOE has not adequately

searched for responsive information. (ECF No. 112 at 9-10). However, the CCBOE claims

that it reached out to its employees who may have responsive information and produced

what it gathered, and it also contacted the WVDE for responsive documents. (ECF No.

118 at 13). Although the CCBOE maintains that it performed a reasonable search and

produced all that it gathered, it makes clear that it has no control over the email system

in order to search it. For the reasons discussed, that contention is incorrect. In addition,

the CCBOE only mentions producing calendar entries. Aside from the fact that it is

unclear why those documents were not produced until after Plaintiffs filed this motion

to compel, calendar notations do not alone satisfy the CCBOE’s obligation to respond to

these requests. Plaintiffs seek documents relating to events held during COMPASS time

at Huntington High School from August 2020 to February 2022. It defies logic that the

only responsive documents within the possession, custody, or control of the CCBOE are

belated calendar entries. The CCBOE indicates that it has “reached out” to the WVDE,

but it provides no timeline as to when it might supplement its response. It also does not

indicate which employees it asked for responsive information. In sum, the CCBOE fails

to show that it satisfactorily responded to these requests, and it offers insufficient

explanation or argument to rebut Plaintiffs motion to compel. The Court GRANTS the

motion to compel regarding these requests and ORDERS the CCBOE to supplement its

responses within 14 days of this Order.

I. Request for Production No. 7

This request seeks all documents concerning the FAC club at Huntington East

Middle School from August 15, 2016 to the present, including (1) documents concerning

FAC meetings or events and (2) documents sent, received, or created by Gary Carpenter

concerning the FAC. (ECF No. 112-5 at 11). Like most of the discovery requests, the

CCBOE initially responded with general objections, but later supplemented its response,

stating that it did “not have any documents responsive to this request.” (Id. at 11-12). In

its second supplemental response, the CCBOE elaborated upon the nature of its

objections that the request was overly broad, unduly burdensome, and vague, yet it

stated that “[w]ithout waiving said objections, [the CCBOE] is unaware of any

documents it has or might have in its possession, but continues to search for the same.”

(ECF No. 112-7 at 5).

Finally, in response to the motion to compel, the CCBOE states that, unlike

Huntington High School, Huntington East Middle School does not have a weekly

calendar that would show FAC meetings or events. (ECF No. 118 at 12). Consequently,

the CCBOE claims that it would not have specific documents of any FCA meetings or

events, nor any other clubs that have met. (Id.). Regarding “any documents sent,

received or created by Gary Carpenter concerning FCA, if this information exists at all,

it would be in the control of third parties the WVDE, FCA, or Gary Carpenter personally.”

(Id.) (citation omitted).

These arguments are unpersuasive. First, it is not apparent why the absence of a

saved school calendar supports the conclusion that the CCBOE does not have any

documents that are responsive to this request. As discussed regarding prior requests for

production, Plaintiffs are not only seeking only calendar notations. Common sense

dictates that there might be emails, written notices, or other documents concerning the

FCA club, but the CCBOE provides no explanation concerning those possible

documents. The CCBOE states that it has no responsive documents, but it makes clear

that it has not conducted a reasonable search to make that determination. Rather, the

CCBOE relies upon the unreasonable assumption that there are no calendar documents

to produce, and its obligation is satisfied.

The explanation for not producing Gary Carpenter documents is similarly

unconvincing. As explained, the CCBOE has specific policies under which it can ask

teachers to retain and produce certain documents that are relevant to a pending

litigation. Gary Carpenter is still listed as a teacher at Huntington East Middle School

on the Cabell County Schools website. See Staff Directory, Cabell County Schools,

available at https://www.cabellschools.com/Page/816 (last accessed Mar. 22, 2023).

Therefore, pursuant to its own policies, the CCBOE could ask Mr. Carpenter for

responsive information.

Finally, the CCBOE states that it also reached out to the WVDE to try to obtain

electronic communications that might be responsive. (ECF No. 118 at 12). The CCBOE

gives the impression that it has exceeded its discovery obligations by contacting the

WVDE, but that position is without merit for the reasons discussed. For all of those

reasons, the CCBOE fails to meet its burden of persuasion that it should not be

compelled to respond to this discovery request. The Court GRANTS the motion to

compel regarding this request and ORDERS the CCBOE to supplement its responses

within 14 days of this Order.

The Clerk is instructed to provide a copy of this Order to counsel and any

unrepresented parties.

ENTERED: March 27, 2023

VAG

Uni ates Magistrate Judge

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