Chris Etters v. Knox County, Tennessee

12/14/2023

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 17, 2023

CHRIS ETTERS ET AL. v. KNOX COUNTY, TENNESSEE, ET AL.

Appeal from the Chancery Court for Knox County

No. 198839-1 John F. Weaver, Chancellor

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No. E2022-01498-COA-R9-CV

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In this interlocutory appeal, the defendant municipal board claimed that a document

attached to the plaintiffs’ amended complaint was protected by the attorney work product

doctrine and therefore could not be relied upon or otherwise utilized by the plaintiffs.

The defendant further urged that such protection had not been waived. The trial court

disagreed, finding that although portions of the document were protected by the work

product doctrine, such protection had been waived. Discerning no reversible error, we

affirm.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Chancery Court

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and KRISTI M. DAVIS, JJ., joined.

John E. Owings, Stephanie D. Coleman, and Sarah D. Jarrard, Knoxville, Tennessee, for

the appellant, Knox County Retirement and Pension Board.1

OPINION

This action originated with the filing of a “Complaint for Declaratory Judgment

and Prospective Injunctive Relief” on September 20, 2019, in the Knox County Chancery

Court (“trial court”). The plaintiffs listed in this complaint were Chris Etters, John Story,

John Fugate, Shirley Smith, Wayne James, Travor Willis, Shane Reed, Robin Reed,

Lloyd Peffer, Melissa Peffer, Jacob Collin Thurber, and Zachary Peter Thurber

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No appellate briefs were filed by any of the appellees: John Fugate, Chris Etters, Wayne James, Lloyd

Peffer, Melissa Peffer, Robin Reed, Shane Reed, Shirley Smith, John Story, Jacob Collin Thurber,

Zachary Peter Thurber, Travor Willis, or Knox County, Tennessee.

(collectively, “Plaintiffs”); the defendant was listed as Knox County, Tennessee (“Knox

County”). Plaintiffs alleged that they were bringing the action on behalf of themselves

and other Knox County citizens and taxpayers because Knox County was paying retirees

of the Knox County Sheriff’s Department a greater monetary benefit than was allowed by

the voters pursuant to the Knox County Charter. Plaintiffs averred that Knox County had

been including accrued leave cashout in the calculation of officers’ retirement benefits,

which action Plaintiffs claimed was unlawful. Plaintiffs asked the trial court to determine

that Knox County’s act of increasing pension benefits beyond an amount equal to 75% of

the retired officers’ former monthly salaries was ultra vires and in violation of the Knox

County Charter. Plaintiffs sought injunctive and other relief.

On September 27, 2019, the Knox County Retirement and Pension Board (“the

Pension Board”) filed a motion to intervene as of right pursuant to Tennessee Rule of

Civil Procedure 24.01. The Pension Board claimed that the Knox County Charter

provided the Pension Board with complete control over the administration of the Knox

County employees’ retirement system, including the power to employ legal counsel. The

Pension Board thus sought to intervene as a defendant in the action. Plaintiffs opposed

the Pension Board’s intervention.

On January 21, 2020, Knox County filed a motion to dismiss, asserting that

Plaintiffs had failed to state a claim upon which relief could be granted. Knox County

urged that it was not the proper entity from which the relief sought by Plaintiffs could be

granted. As further bases for dismissal, Knox County relied upon the doctrine of res

judicata as well as lack of standing. The Pension Board concomitantly filed a motion to

dismiss, averring that the action was precluded by the doctrine of res judicata, that

Plaintiffs did not have standing as “taxpayers,” and that Plaintiffs sought relief that would

violate the Knox County Charter and Tennessee law.

The trial court conducted a hearing on July 16, 2020, respecting the pending

motions. The court entered an order on July 30, 2020, directing that Plaintiffs would

have until July 31, 2020, to file a motion to amend their complaint. The court reserved

ruling on the motions to dismiss until such time as it could review Plaintiffs’ arguments

concerning an amended complaint.

Plaintiffs filed a motion to amend on July 31, 2020, accompanied by a copy of

their proposed amended complaint, which named both Knox County and the Pension

Board as defendants. Plaintiffs attached various documents as exhibits to their proposed

amended complaint, including a letter dated August 10, 2017 (“the Letter”), which was

written by attorney William E. Mason and directed to then Knox County Law Director,

Bud Armstrong. The letter addressed issues facing their mutual client, the Pension

Board, in a pending lawsuit concerning the Knox County Sheriff’s Department retirement

system and the computation of retired officers’ benefits. The letter proceeded to address

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potential courses of action for the Pension Board in the matter and sets forth Mr. Mason’s

legal advice to the Pension Board respecting the litigation.

On August 24, 2020, the Pension Board filed a motion seeking permission from

the trial court to file a motion for a protective order under seal. The Pension Board

asserted that the motion concerned information that was protected by the attorney-client

privilege and the attorney work product doctrine. On October 13 and 14, 2020, Knox

County and the Pension Board, respectively, filed responses opposing the amendment of

Plaintiffs’ complaint.

On October 16, 2020, the trial court conducted a hearing and entered an agreed

order stating that Plaintiffs’ motion to amend and attached amended complaint and

exhibits would be placed under seal “until such time as this court can address all such

issues related to attorney-client privilege and work product related to the document.” The

Pension Board then filed, under seal, a motion for protective order. The Pension Board

also asked the trial court to strike the Letter and any and all references to same from the

record.

In its motion, the Pension Board asserted that the Letter contained information that

was protected by the attorney-client privilege and the attorney work product doctrine

inasmuch as both Attorney Mason and Attorney Armstrong had represented the Pension

Board at the time the Letter was written. The Pension Board averred that it had neither

waived the privilege nor authorized the attorneys to release the Letter. The Pension

Board further averred that its current counsel had sent a letter to Plaintiffs’ counsel on

August 4, 2020, advising Plaintiffs’ counsel of the privileged nature of the letter and

requesting that Plaintiff’s counsel immediately terminate use of the Letter and take steps

to remove it from the public domain. According to the Pension Board, no response had

been received from Plaintiffs’ counsel. The Pension Board thus sought an in camera

hearing, an order from the trial court directing Plaintiffs’ counsel to destroy all privileged

information in his possession, a protective order concerning such privileged information,

and an order directing that the Letter and all references to same be stricken from the

record or placed under seal.

The Pension Board subsequently filed a supplemental brief in support of its

motion on September 8, 2021. In this brief, the Pension Board argued that the attorney

work product doctrine was an exception to the Tennessee Public Records Act (“TPRA”)

such that the letter should not have been disclosed by Knox County or its law director.

The Pension Board concomitantly filed a motion for contempt, asserting that Plaintiffs

had filed “publicly” a brief in response to the motion to strike containing the same

privileged information from the Letter despite the trial court’s directive that such matters

would be filed under seal. The Pension Board requested that Plaintiffs’ brief be stricken

and that Plaintiffs be held in contempt and sanctioned.

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On September 9, 2021, the trial court conducted a closed hearing respecting the

motion for protective order and to strike. On October 8, 2021, the court entered a

resulting order, directing that Plaintiffs’ brief filed in response to the motion be placed

under seal.

On December 2, 2021, the trial court entered a “Memorandum Opinion and

Order,” denying the Pension Board’s pending motions. The court determined that the

Letter was not protected by the attorney-client privilege because such privilege only

protected (1) communications from client to lawyer and (2) communications from lawyer

to client containing legal advice “if the advice reveals client confidence or otherwise

privileged information.” The court further noted that the privilege did not extend to

“communications from an attorney to a client when they contain advice solely based

upon public information rather than confidential information,” citing Hazlett v. Bryant,

241 S.W.2d 121, 124 (Tenn. 1951).

With regard to the work product doctrine, the trial court explained that the

doctrine’s protection is broader than attorney-client privilege and “protects materials

containing the mental impressions, conclusions, opinions, and legal theories of an

attorney prepared in anticipation of litigation.” See Tenn. R. Civ. P. 26.02(3). The court

also acknowledged, however, that once confidential information protected by the work

product doctrine was made public, the protection would be deemed waived.

Accordingly, inasmuch as the Letter and/or the opinions contained therein had been

disclosed to the public in a prior lawsuit, the court determined that the work product

doctrine offered no protection. The court noted that Mr. Mason’s opinions expressed in

the Letter had been disclosed in a complaint previously filed by the Pension Board in

Knox County Circuit Court wherein Mr. Mason was named as the defendant. The court

further noted that the Knox County Law Director’s office had disclosed the Letter in a

TPRA request. As such, the trial court denied the Pension Board’s motions upon

concluding that the Letter did not contain protected information.

On January 3, 2022, the Pension Board filed a motion seeking permission for an

interlocutory appeal concerning the trial court’s December 2, 2021 ruling. The trial court

granted the motion by order entered October 13, 2022. Likewise, this Court granted

permission for an interlocutory appeal on December 8, 2022.

On December 14, 2022, the trial court entered an “Order of Non-Suit,” stating that

Plaintiffs had voluntarily non-suited their claims against the defendants pursuant to

Tennessee Rule of Civil Procedure 41. The Pension Board then filed a motion for

clarification in this Court, requesting a determination of the effect of the December 14,

2022 order. This Court entered an Order on December 21, 2022, stating that inasmuch as

this Court had already assumed jurisdiction over the matter and stayed all proceedings in

the trial court before the December 14, 2022 order was entered, the trial court lacked

jurisdiction to enter any orders after December 8, 2022. This Court therefore ruled that

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the December 14, 2022 order was void and of no effect. Furthermore, we instructed that

if Plaintiffs wished to dismiss their claims, they must first seek this Court’s permission to

lift the stay on the trial court proceedings. Plaintiffs did not do so, and this interlocutory

appeal proceeded.

II. Issues Presented

Pursuant to Tennessee Rule of Appellate Procedure 9, “we are limited on appeal to

the questions certified by the trial court in its order granting permission to seek an

interlocutory appeal and in this Court’s order granting the appeal.” In re

Bridgestone/Firestone & Ford Motor Co. Litig., 286 S.W.3d 898, 902 (Tenn. Ct. App.

2008) (citing Tenn. R. App. P. 9). This Court directed in its order granting interlocutory

appeal that the issues on appeal would be as follows:

1. Whether Mr. Mason’s August 10, 2017 letter is subject to protection

under the Pension Board’s claim of attorney-client privilege and/or

the application of the work product doctrine.

2. If Mr. Mason’s August 10, 2017 letter is subject to protection under

either of the above theories, whether the privilege has been waived.

III. Standard of Review

Following the grant of an application for interlocutory appeal, “the standard of

review is the same standard that would have been applied to the issue(s) in an appeal as

of right.” See Peck v. Tanner, 181 S.W.3d 262, 265 (Tenn. 2005). As this Court has

previously explained, decisions regarding the application of the attorney-client privilege

and the work product doctrine “address themselves to a trial court’s discretion.” See

Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).

Accordingly, this Court must review these decisions using the “abuse of discretion”

standard of review. See id.

With regard to the abuse of discretion standard of review, this Court has clarified:

To avoid result-oriented decisions or seemingly irreconcilable

precedents, reviewing courts should review a lower court’s discretionary

decision to determine (1) whether the factual basis for the decision is

properly supported by evidence in the record, (2) whether the lower court

properly identified and applied the most appropriate legal principles

applicable to the decision, and (3) whether the lower court’s decision was

within the range of acceptable alternative dispositions. When called upon

to review a lower court’s discretionary decision, the reviewing court should

review the underlying factual findings using the preponderance of the

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evidence standard contained in Tenn. R. App. P. 13(d) and should review

the lower court’s legal determinations de novo without any presumption of

correctness.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010) (internal citations

omitted).

IV. Attorney-Client Privilege and Work Product Doctrine

The initial question certified in this Court’s order granting interlocutory appeal is

whether Mr. Mason’s August 10, 2017 letter is subject to protection under the Pension

Board’s claim of attorney-client privilege and/or the application of the work product

doctrine. In its appellate brief, the Pension Board asserts that the letter is protected by the

work product doctrine and makes no argument concerning the applicability of attorney-

client privilege.2 Accordingly, we will confine our analysis to the work product doctrine.

As this Court has previously explained, the work product doctrine operates to

protect the work produced by attorneys, “embod[ying] the policy that attorneys, doing the

sort of work that attorneys do to prepare a case for trial, should not be hampered by the

prospect that they might be called upon at any time to hand over the results of their work

to their adversaries.” See Boyd, 88 S.W.3d at 219. This Court has further clarified:

The central purpose of the work product doctrine is to protect an attorney’s

preparation for trial under the adversary system. The policy underlying the

doctrine is that lawyers preparing for litigation should be permitted to

2

We note that in Tennessee, the attorney-client privilege is codified at Tennessee Code Annotated § 23-3-

105 (2021), which provides:

No attorney, solicitor or counselor shall be permitted, in giving testimony against a client

or person who consulted the attorney, solicitor or counselor professionally, to disclose

any communication made to the attorney, solicitor or counselor as such by such person

during the pendency of the suit, before or afterward, to the person’s injury.

As the Boyd Court explained:

The attorney-client privilege is not absolute, nor does it cover all

communications between a client and his or her attorney. The communications must

involve the subject matter of the representation and must be made with the intention that

they will be kept confidential. The privilege applies not only to the client’s

communications but also to the attorney’s communications to his or her client when the

attorney’s communications are specifically based on the client’s confidential

communications or when disclosing the attorney’s communications would, directly or

indirectly, reveal the substance of the client’s confidential communications.

Boyd, 88 S.W.3d at 212-13 (footnote omitted) (internal citations omitted).

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assemble information, to separate the relevant facts from the irrelevant, and

to use the relevant facts to plan and prepare their strategy without undue

and needless interference. Boyd v. Comdata Network, Inc., 88 S.W.3d 203,

219-20 (Tenn. Ct. App. 2002). Thus, the doctrine protects parties from

“learning of the adversary’s mental impressions, conclusions, and legal

theories of the case,” Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d

[681,] 689 [(Tenn. 1994)], and prevents a litigant “from taking a free ride

on the research and thinking of his opponent’s lawyer.” United States v.

Frederick, 182 F.3d 496, 500 (7th Cir. 1999).

While the work product doctrine is most frequently invoked in civil

cases, it has a vital role in assuring the proper functioning of the criminal

justice system. United States v. Nobles, 422 U.S. 225, 238, 95 S. Ct. 2160,

2170, 45 L. Ed. 2d 141 (1975). Thus, the work product doctrine applies to

both civil and criminal proceedings, although not necessarily in the same

fashion. Coe v. State, 17 S.W.3d 193, 214 (Tenn. 2000); Boyd v. Comdata

Network, Inc., 88 S.W.3d at 219. The work product doctrine has now been

codified in procedural rules. Tenn. R. Civ. P. 26.02(3) embodies the

version of the doctrine applicable to civil proceedings.

Swift v. Campbell, 159 S.W.3d 565, 572-73 (Tenn. Ct. App. 2004) (applying the

corresponding rule of criminal procedure in a case involving a public records request).

The civil procedural rule embodying the work product doctrine, Tennessee Rule of

Civil Procedure 26.02(3), provides as follows in pertinent part:

TRIAL PREPARATION: MATERIALS. Subject to the provisions of

subdivision (4) of this rule, a party may obtain discovery of documents and

tangible things otherwise discoverable under subdivision (1) of this rule and

prepared in anticipation of litigation or for trial by or for another party or by

or for that other party’s representative (including an attorney, consultant,

surety, indemnitor, insurer, or agent) only upon a showing that the party

seeking discovery has substantial need of the materials in the preparation of

the case and is unable without undue hardship to obtain the substantial

equivalent of the materials by other means. In ordering discovery of such

materials when the required showing has been made, the court shall protect

against disclosure of the mental impressions, conclusions, opinions, or legal

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

litigation.

“To qualify as work product, it must be established: ‘(1) that the material sought is

tangible, (2) that the documents were prepared in anticipation of litigation or trial, and (3)

that the documents were prepared by or for legal counsel.’” Friedmann v. Corr. Corp. of

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Am., No. M2012-00212-COA-R3-CV, 2013 WL 784584, at *8 (Tenn. Ct. App. Feb. 28,

2013) (quoting The Tennessean v. Tenn. Dep’t of Pers., No. M2005-02578-COA-R3-CV,

2007 WL 1241337, at *1 (Tenn. Ct. App. Apr. 27, 2007)). See State ex rel Flowers v.

Tenn. Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d 602, 617 n.15 (Tenn. Ct. App.

2006)).

In the case at bar, it is undisputed that the Letter was written by Mr. Mason, as

counsel for the Pension Board, to Mr. Armstrong, who was Knox County Law Director at

that time and who also represented the Pension Board. The letter was in regard to

pending litigation concerning the same issue underlying this lawsuit—proper calculation

of retired officers’ pension benefits. As the trial court found:

Laid out in the Letter were the opposing views held by Mr. Mason and Mr.

Armstrong, concerning the legality of including accrued vacation leave

cash out benefits, in average monthly compensation, for purposes of

determining the monthly amounts of pension benefits under the Uniformed

Officers Pension Plan.

Without reiterating the contents of the Letter here, there can be no question that

the Letter contained Mr. Mason’s legal theories and opinions concerning then-pending

litigation against the Pension Board. See Arnold v. City of Chattanooga, 19 S.W.3d 779,

784 (Tenn. Ct. App. 1999) (“[M]aterials which are prepared in anticipation of litigation

need not be prepared for the specific case in which discovery is sought in order to be

protected by the work product doctrine.”). Mr. Mason advises a course of action for the

Pension Board in the litigation that diverges from Mr. Armstrong’s recommendation.

Mr. Mason also explains that his interpretation of the governing documents is his basis

for this alternate opinion. Based on our review of the Letter, we conclude that it would

be protected by the work product doctrine, as defined above.3

3

We would be remiss, however, if we failed to emphasize that the language utilized in Tennessee Rule of

Civil Procedure 26.02(3) and the cases interpreting same refer to “documents,” “materials,” and “tangible

things.” The Pension Board points out that although the trial court found that the work product doctrine

was applicable to the Letter in its December 2021 order, the court proceeded to select certain sections of

the Letter as protected by the doctrine and to delineate other sections that were not. The trial court cited

no precedent for this approach. We have likewise failed to locate any authority allowing documents to be

separated into parts with only particular sections treated as protected. We therefore conclude that the

attorney work product protection would extend to the entire document rather than only to certain sections

contained therein.

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V. Waiver of Work Product Doctrine Protection

The second question certified in this Court’s order granting interlocutory appeal is

whether the protection afforded to the Letter by the work product doctrine has been

waived. As this Court has previously explained:

The protections afforded litigants by T.R.C.P. § 26.02(3) and

26.02(4) are qualified, and equitable in nature. The privilege can be

overcome upon a proper showing. Vythoulkas v. Vanderbilt University

Hospital, 693 S.W.2d 350 (Tenn. Ct. App. 1985) (citing Southeastern Fleet

Leasing Inc., v. Gentry, 57 Tenn. App. 162, 416 S.W.2d 773-778 (1967).

In keeping with the equitable considerations that must be examined in

applying the privilege, courts have recognized exceptions to the work

product doctrine. An example is where the attorney or client has waived

the protection by voluntarily disclosing the work sought to be protected.

See Campbell County Bd. of Educ. v. Brownlee-Kesterson, Inc., 677

S.W.2d 457, 463 (Tenn. Ct. App. 1984) (holding that attorney waived work

product protection by disclosing information to adversary).

Partial waiver of work product as well as attorney/client privilege

can act to waive the entire privilege. See, e.g., In re Kidder Peabody Sec.

Litig., 168 F.R.D. 459, 473 (S.D.N.Y.1996) (holding that where a party

makes particular information a key issue, that party cannot then assert

privilege as to that information); Hartz Mountain Indus., Inc. v.

Commissioner, 93 T .C. 521, 527, 1989 WL 128568, (U.S. Tax Ct. 1989)

(finding that fairness requires that selective disclosure operate as a waiver

to any work product protection).

The determination of waiver rests not on whether particular

information is introduced into evidence, ‘but rather whether the party’s use

of the document is unfair and inconsistent with a claim of privilege.’

Granite Partners, L.P. v. Bear Stearns & Co., 184 F.R.D. 49 (S.D.N.Y.

1999). The scope of the waiver by disclosure is defined by the ‘fairness

doctrine,’ which aims to prevent the prejudice and distortion that may be

caused by one party’s selective disclose of otherwise protected information.

Id. at 4.

Courts have universally held that a party is prevented from invoking

the work product doctrine immunity as both ‘sword and shield’. In

Wardleigh v. Second Judicial Dist. Ct., 111 Nev. 345, 891 P.2d 1180

(1995), the Supreme Court of Nevada held that the doctrine of waiver was

intended as a shield, not a sword. ‘[W]here a party seeks an advantage in

litigation by revealing part of a privileged communication, the party shall

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be deemed to have waived the entire attorney-client privilege as it relates to

the subject matter of that which was partially disclosed. (Citing United

States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)); accord In re Sealed

Case, 676 F.2d 793, 818 (D.C. Cir. 1982); S.T. Systems Corp. v. Maryland

Nat. Bank, 112 Md. App. 20, 684 A.2d 32 (1995). Also see, e.g., In re

Kidder Peabody Sec. Litig., 168 F.R.D. 459, 473 (S.D.N.Y. 1996); Hartz

Mountain Indus. Inc. v. Commissioner, 93 T.C. 521, 527, 1989 WL 128568

(U.S. Tax Ct. 1989). Disclosure need not be made to the party’s adversary

in litigation to constitute waiver. It can be made extra-judicially, as in

disclosure to the public of part of the confidential material. See Bassett v.

Newton, 658 So.2d 398 (Ala. 1995).

Arnold, 19 S.W.3d at 787 (footnote omitted).

The trial court determined that the protection afforded by the work product

doctrine had been waived herein because (1) the information contained in the Letter had

also been contained in an attachment to a motion to dismiss filed on February 25, 2018,

by the Pension Board in a prior action before the trial court, and (2) the Letter previously

had been disclosed to the public by the current Knox County Law Director, David Buuck,

in a TPRA request.

At the September 9, 2021 hearing concerning the motion for protective order and

to strike, Plaintiffs’ counsel called Mr. Buuck to testify with reference to his knowledge

of the Letter. Mr. Buuck stated that he was Chief Deputy Law Director for Knox County

at the time the Letter was drafted and that he was familiar with it because he had

participated in the prior litigation involving the pension benefit calculations. Mr. Buuck

testified unequivocally that the contents of the Letter had been publicly disclosed.

According to Mr. Buuck, the Knox County Law Director’s office had received a

TPRA request from the Knoxville Focus newspaper concerning the documents related to

the pension litigation. Mr. Buuck stated that Mr. Armstrong and he had specifically

reviewed the Letter after receiving the TPRA request and had decided that the contents of

the Letter were not privileged. Mr. Buuck testified that when they complied with the

TPRA request, they released “[v]irtually the entire file from the prior lawsuit,” including

the Letter. As Mr. Buuck specifically stated, “the Focus wanted public records on

everything to do with that Pension Board dismissal of that lawsuit, so we complied with

the public records request as we felt we were required to do, and this [the Letter] was part

of that documentation.” This being the case, we agree with the trial court that the

protection afforded by the work product doctrine has been waived.

In Arnold, this Court determined that the documents at issue were protected by the

work product doctrine and were therefore not subject to disclosure pursuant to a TPRA

request unless the protection had been waived. See 19 S.W.3d at 785-87. In concluding

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that the confidentiality provided by the work product doctrine had been waived, this

Court relied on the fact that information from the subject documents had been

disseminated during a City Council meeting and a subsequent public forum meeting. See

id. at 787-88; see also Campbell Cnty. Bd. of Educ. v. Brownlee-Kesterson, Inc., 677

S.W.2d 457, 463 (Tenn. Ct. App. 1984) (determining that an attorney had waived work

product protection by disclosing information to opposing counsel). Moreover, in Sharp

v. Tenn. Dep’t of Comm. & Ins., No. M2016-01207-COA-R3-CV, 2017 WL 5197291, at

*4 (Tenn. Ct. App. Nov. 9, 2017), this Court concluded that the protection afforded by

the work product doctrine had been waived when “some of the information contained in

the report” was relied upon by the governmental defendant as justification for certain

actions the defendant had taken. This Court further stated that “use of the report in this

manner is inconsistent with a claim of privilege.” Id.

In the instant action, Mr. Buuck clearly stated that the Letter had been disclosed to

a local newspaper as part of Knox County’s response to a TPRA request. Mr. Buuck’s

testimony in this regard was unrefuted. Accordingly, we conclude that the protection

afforded to the Letter as attorney work product has been waived. We therefore affirm the

trial court’s ruling concerning waiver.

We acknowledge the Pension Board’s argument that Plaintiffs should not be

allowed to rely on a waiver argument due to the purported “unclean hands” of Plaintiffs’

counsel. See, e.g., In re Mattie L., 618 S.W.3d 335, 344 (Tenn. 2021) (“[H]e who comes

into a court of equity, asking its interposition in his behalf, must come with clean

hands.”). The Pension Board urges that Plaintiffs’ counsel sought to obtain the Letter

from Mr. Armstrong and “should have terminated his use of the Letter” once Plaintiffs’

counsel realized that the Letter contained protected work product. Having determined

that the work product protection had been waived, we find the Pension Board’s argument

to be unavailing.

VI. Conclusion

For the foregoing reasons, we affirm the trial court’s determination that the Letter

was protected by the work product doctrine. We further affirm the trial court’s

determination that the work product protection extending to the Letter had been waived

by its voluntary disclosure. This case is remanded to the trial court for further

proceedings consistent with this Opinion. Costs on appeal are assessed to the appellant,

the Knox County Retirement and Pension Board.

s/Thomas R. Frierson, II

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THOMAS R. FRIERSON, II, JUDGE

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