VIRGINIA:

IN THE FAIRFAX CIRCUIT COURT

In re: Case No. CM 2023-285

COMMONWEALTH OF VIRGINIA
EX REL. JASON S. MIYARES,
ATTORNEY GENERAL,

Petitioner, Case No. CL 2023-0010051*

VS. Lead Case Consolidated with

Case No. CM-2023-0000285
FAIRFAX COUNTY PUBLIC
SCHOOLS,

Respondent.

MEMORANDUM OPINION

THIS MATTER came before the Court on Friday, August 4, 2023, upon the July 12, 2023,

Agreed Order for Briefing Schedule to address issues identified by the parties as "good cause" and

"sovereign immunity" arising from the Attorney General's Office of Civil Rights', ("The Attorney

General"), Petition and Motion for an Issuance of Subpoenas in furtherance of its ongoing

investigation of the Respondent, Fairfax County Public Schools ("FCPS").

Procedural Posture

This matter arose when the Attorney General's Office of Civil Rights petitioned for the

issuance of subpoena duces tecuin upon FCPS and certain individuals including school board

members, divisional school board counsel, the superintendent, and a principal.' Shortly after the

Attorney General initially petitioned for an issuance of a subpoena only at to FCPS, FCPS filed

' The Court's July 11, 2023, order opened a new Civil File case, with a CL designation, to serve as the
lead case consolidating all pleadings previously filed in CM-2023-0000285.
Objections to Petition for Issuance of Subpoena and a Plea in Bar on grounds of sovereign

immunity. The Attorney General then expanded the requests to the individual identified above.

After the matter was opened as a civil action file and upon an agreed briefing schedule, the

Attorney General first filed a Memorandum in Support of Petition and Motion for Issuance of

Subpoenas Against FCPS and Individuals on July 17, 2023.

On July 21, 2023, FCPS filed a brief its opposition to the Commonwealth's Petition and

Motion and a Brief in Support of Plea in Bar. In response to the plea in bar, the Attorney General

filed an opposition on July 31, 2023.

The issues presented are matters of first impression and include whether the Court should

issue a subpoena duces tecum pursuant to Va. Code § 2.2-521 to compel the production of an

independent internal investigation report and the notes and witness statements produced by the law

firm retained to investigate allegations of discriminatory practices by FCPS teachers,

administrators, and staff.

Although the issuance of a subpoena may be largely ministerial, there are some subpoenas

that require an examination of the context in which the subpoena duces tecum was sought.

Background and Material Facts Not in Dispute

On January 4, 2023, the Attorney General initiated an investigation of the Fairfax County

Public Schools to determine whether any FCPS teachers, administrators, or staff had engaged in

unlawful discriminatory practice on the basis of race, color, or national origin by intentionally

withholding the notification of National Merit Scholarship Corporation's Commended Student

awards. It is the policy of the Commonwealth to safeguard all individuals from unlawful

discrimination in places of public accommodation, including educational institutions. Va. Code §

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Attorney General v. Fairfax County Public Schools, Case No. CL 2023-0010051 Page 2 of 16
2.2-3900(B)(1). The Attorney General's Office of Civil Rights was formed to investigate and take

action in response to founded claims of discrimination.

Leading up to January of 2023, multiple news outlets had reported that an administrator at

a Fairfax public high school told a parent that the school had deliberately withheld the

Commendations because it wanted to recognize students as individuals, "not focus on their

achievements," and that the school did not want to "'hurt' the feelings of students who didn't get

the award."

The same day the Attorney General reported opening an investigation, FCPS

Superintendent Reid announced that FCPS had "initiated an investigative review by an

independent third party" into the circumstances surrounding the withholding of the notification of

such awards. FCPS stated it intended to share key findings and updates to processes to ensure

appropriate and timely notification of National Merit Scholarship recognitions. The announcement

further stated that FCPS stood ready to work with its partners at the state level on both areas of

investigation as communicated to the Attorney General. See hups://www.fcps.edthinewstmessage-

superintendent-regarding-state-investigation. Pet. Ex. B.

On January 25, 2023, the Attorney General issued an Investigatory Demand and Request

for Information asking for all documents provided to the "independent third party" and to identify

who was ...onducting the investigative review. Jan. 25, 2023, Demand Letter.

Several months later, on March 29, 2023, FCPS issued another statement and published

key findings from the investigation and explained that the investigation had "concluded there

was no evidence to suggest that FCPS deliberately withheld notification of Commended Student

status from any student." Pet. Ex. D.

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Attorney General v. Fairfax County Public Schools, Case No. CL 2023-0010051 Page 3 of 16
 The Attorney General believing this statement to be false given direct reports from a parent

and others that notifications had been intentionally withheld and after confirming the identity of

the law firm that conducted the investigation, issued another Request for Information to FCPS on

March 31, 2023, seeking, in part, the "report and findings made by Sands Anderson as part of its

investigation into the National Merit Commended Student Notifications" as well as the "[n]otes

and transcripts from any and all witness interviews conducted by Sands Anderson as part of its

Investigation." March 31, Demand letter.

In response, FCPS produced a list of FCPS employees interviewed and the video interview

of two parents. FCPS refused, however, to provide Sands Anderson's report, findings, employee

interviews or any related documents asserting that their disclosure was protected by the attorney-

client privilege and work product doctrine.

In response, the Attorney General filed the petition invoking Va. Code § 2.2-521 for a

subpoena upon FCPS. Later, the request was expanded to include the superintendent, division

counsel, principal, and members of the school board.

Va. Code § 2.2-521 Subpoena Power to Assist in Investigations

Va. Code § 2.2-521 provides the following:

Whenever the Attorney General has reasonable cause to believe that any person has
engaged in or is engaging in any unlawful discriminatory practice, he may apply to
the judge of the circuit court of the jurisdiction in which the respondent resides or
is doing business for a subpoena duces tecum against any person refusing to
produce such data and information. The judge of the court, upon good cause shown,
may cause the subpoena to be issued. Any person failing to comply with such
subpoena shall be subject to punishment for contempt by the court issuing the
subpoena. For purposes of this section "person" includes any individual,
partnership, corporation, association, legal representative, mutual company, joint
stock company, trust, unincorporated organization, employee, employer;
employment agency, labor organization, joint labor-management committee, or an
agent thereof.

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 Plea-in-Bar on Grounds of Sovereign Immunity

Preliminarily, the Court denies FCPS's Plea in Bar on grounds of sovereign immunity. The

School Board cannot assert sovereign immunity in response to a subpoena being issued under §

2.2-521. The School Board, deriving its powers from the Commonwealth, cannot assert sovereign

immunity against the Attorney General who appears on behalf of the Commonwealth. The School

Board is a subordinate subdivision of the Commonwealth -- possessing no sovereign powers itself

— and cannot rely on a doctrine predicated on the theory that the sovereign can do no wrong.

Further, a plea-in-bar, which is a defensive pleading to the entirety of an asserted claim, is

not procedurally available to object to a pre-trial investigative subpoena or grounds upon which to

refuse compliance with a subpoena duces tecum.

The County's objections on other grounds, as may be incidentally supported by the

principles of sovereign immunity, are preserved and addressed below.

Entities Subject to Subpoena under § 2.2-521

As both parties recognized, Code § 2.2-521 is worded broadly and covers any persons who

have data and information relevant to reasonably believed unlawful discriminatory practices even

if that person is not the person engaged in the unlawful discriminatory practices. Under § 2.2-521,

the circuit court where the respondent resides or conducts business is granted the authority to issue

a subpoena duces tecum. The statute separately identified the wrongdoer as -Respondent" and

"any person" as falling under the broad scope of defined persons. The request for a subpoena duces

tecum of the Fairfax County Public Schools was therefore appropriately sought in this circuit.

The definition of a "person" as an "individual, partnership, corporation, association, legal

representative, mutual company, joint stock company, trust, unincorporated organization,

employee, employer, employment agency, labor organization, joint labor-management committee,

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Attorney General v. Fairfax County Public Schools, Case No. CL 2023-0010051 Page 5 of 16
or an agent thereof' and, read plainly, applies to private sector entities. § 2,2-521. As recognized

by the Virginia Supreme Court, the definition of words can be found by the company those words

keep. Cuccinelli v. Rector, Visitors of University of Virginia, 283 Va. 420, 432 (2012) (applying

maxim of noscitur a sociis). FCPS is therefore correct that the § 2.2-521 omits public bodies or

government agencies from its reach.

A public school system is, by definition, a public body. Meanwhile, the governing board

or school boards are created by statute and constitute "public quasi corporations" exercising

limited powers and functioning as public bodies and agencies of the Commonwealth. Kellam v.

School Bd. Of City of Norfolk, 202 Va. 252, 254 (1960) citing 16 M.J., Schools, §§ 7 and 12; 47

Am. Jr., Schools, § 42. School boards are hybrids.

The General Assembly knows how to craft statutes to include government entities and their

employees in the definition of a "person" as illustrated by the clear differences in statutory

construction. See, e.g., Va. Code §§ 8.01-412.9, 8.01-412.10 ("Person" subject to subpoena

includes a "government, or governmental subdivision, agency or instrumentality, or any other legal

or commercial entity."). Such similar terms are noticeably missing under § 2.2-521.

Ultimately, the decision in Cuccinelli is instructive, but not entirely for the reasons offered

either by FCPS or as distinguished by the Attorney General. In Cuccinelli, the diapositive issue

was whether the University of Virginia was a person as defined under the Virginia Fraud Against

Taxpayers Act ("FATA"). 283 Va. at 423. Under FATA, a person was defined as "any natural

person, corporation, firm, association, organization, partnership, limited liability company,

business, or trust." Va. Code § 8.01-216.2.

The Cuccinelli decision concluded that those definitions referred to private sector entities

and since the § 8.01-216.2's definition of a person omitted government agencies, the University

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did not fall under the definition of persons under the FATA. See 283 Va. at 426, 432. Because

FATA did not apply to the University, the Cuccinelli decision concluded that the Attorney General

could not make use of FATA's Civil Investigative Demand ("CID") procedure against the

university. Id. at 432.

The Cuccinelli decision characterized FATA as a statute of general applicability and

accordingly applied the "ancient rule of statutory construction" that "Commonwealth agencies are

not bound by statutes of general application no matter how comprehensive the language, unless

named expressly or included by necessary implication." 283 Va. at 426-27 (internal references

omitted). This doctrine similarly supports the conclusion here that FCPS, as a public body, is

excluded from the general applicability and reach of the subpoena.

This case differs slightly from Cuccinelli because the definition of persons is found under

the statute authorizing the issuance of a subpoena, § 2.2-521, and not under the enabling statute, §

2.2-250, which creates the Office of Civil Rights and identified its authority and duties.

The Attorney General argues that § 2.2-521 is not a statute of general application because

only the Attorney General can make use of the statute. The Court agrees, however, with FCPS that

it is not the user who defines the applicability of a statute. The phrase "general application" refers

to class of subjects upon whom the statute is applied. For a statute with a broad reach to include

public bodies, it must be expressly stated by the statute or necessarily implied. See Cuccinelli, 283

Va. at 426-27 (constraining necessary implication to situations where the statute is no longer

functional).

Although this result leaves behind an awkward definition of § 2.2-521 insofar as the Office

of Civil Rights, itself a part of the sovereign and the Commonwealth, is unable to make use of the

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Attorney General v. Fairfax County Public Schools, Case No. CL 2023-0010051 Page 7 of 16
subpoena power against another public body, the definition does not leave the Attorney General

powerless to investigate and enforce claims of discriminatory practices by other public bodies.

As seen here, upon the initiation of the investigation, FCPS cooperated extensively with

the Attorney General's investigation — as would be expected between two public agencies of the

Commonwealth. It is unsurprising that a statute which grants the Attorney General the power to

subpoena documents from private sector entities would therefore omit a public body where

information is available through cooperation or FOIA.

The unavailability of subpoena power to aid an investigation does not lead to the absurd

result, as argued, or leave the Attorney General with far less power than the public who can

subpoena documents from the public body. The subpoena power remains available upon the

initiation of a lawsuit. The Attorney General has been granted the power to investigate and bring

an action against any entity to combat discrimination under Code § 2.2-3906 and once such claims

are brought will have the same access to a subpoena as any other litigant.

To circumvent the defensive claims raised by FCPS and the School Board, the Attorney

General sought subpoenas of the individuals who may have access to the Sands Anderson report

and data relied upon by the report.

Code § 2.2-521 allows for the subpoenas to be issued to individuals, whether employees

or employers. The individuals are therefore appropriately included as targets of the subpoena.

However, the outside law firm's internal investigation report and notes, come into the possession,

custody, and control of the individuals to whom the requested subpoena duces tecum is directed,

if at all, only in the person's official capacity. If within that official capacity, the entity declines to

recognize the subpoena duces tecum, then the individual would not have the authority to release

the document.

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 Good Cause is Context Dependent and More Than Reasonable Belief is Needed

If it is later determined the Court erred in reading the statute as not including public bodies

or government agencies whether as a whole or as hybrid entities, the Court addresses here the issue

of whether the petition meets the standard of good cause.

The Attorney General's office is granted special investigative powers by Code § 2.2-521

constrained by the requirement of a showing of good cause to the Circuit Court. The Attorney

General, with "reasonable cause to believe that any person is engaging in any unlawful

discriminatory practice," may apply to the Circuit Court for a subpoena duces tecum against "any

person refusing to produce such data and information." Va. Code § 2.2-521. The primary question

before this Court is therefore whether the Petition demonstrates good cause to cause issuance of

subpoenas related to the Sands Anderson investigation.

Both parties concede that there is no single definition of good cause which would plainly

govern § 2.2-521, in part, because the statute is new and there is no case law specifically addressing

it. The issue of good cause under § 2.2-521 is an issue of first impression for this Court.

The Attorney General's argument as to good cause can be summarized as follows: there is

good cause under the § 2.2-521 to issue these subpoenas because the Attorney General believes

but cannot determine whether FCPS is misrepresenting the Sands Anderson report. The Attorney

General claims, that the Sands Anderson report is "likely to be relevant" to this investigation. Pet's

Mem. at 10. But demonstrating good cause clearly requires more than a blanket assertion of

"likely" relevance.

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 Good cause in a plethora of other contexts has been addressed by Virginia Courts. See, e.g.,

Leonard v. Commonwealth, 296 Va. 479, 485 (2018) (good cause for consideration of inmate's

name change where request is legitimate and non-frivolous); Prieto v. Commonwealth, 283 Va.

149, 185 (2012) (good cause for disclosure of jury list to ensure selection process did not violate

Sixth Amendment rights); Ballweg v. Crowder Contracting Co., 247 Va. 205, 212-13 (1994)

(plaintiff seeking unemployment compensation met good cause despite refusing available work

where job required Saturday work in violation of religious beliefs). Indeed, the test for good cause

is highly dependent on the specific facts of a given case. See AME Fin. Corp. v. Kiritsis, 281 Va.

384, 392-93 (2011) ("it being impossible to lay down a rule" to define good cause for the

additional time to file responsive pleadings).

Regardless of how a court defines good cause, what is clear is that this phrase must have

some meaning beyond relevancy. To read good cause as nothing more than an extension of

relevancy, would reduce the determination of good cause to nothing more than a proverbial rubber

stamp. The General Assembly's decision to require that the Attorney General demonstrate good

cause suggests an independent judicial examination of the circumstances and the basis upon which

a subpoena is sought.

Accordingly, good cause under § 2.2-521 requires more than a showing that documents are

merely relevant to the Attorney General's investigation. Depending on context, the showing may

not have to be much greater especially given that an investigative subpoena may be issued even

where the facts then known are insufficient to show that discriminatory practices existed beyond

a reasonable belief.

The standard announced under Bragg v. Bd. of Supervisors of Rappahannock Cnty.. 299

Va. 416, 424 (2018), and as relied upon by the Attorney General, that a good cause affidavit sworn

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to as true is sufficient to meet the requirement of good cause is not the standard to be applied here,

mostly because of the nature of the documents being sought.

There must be some showing of the special circumstances which give rise to the need for

the documents when the request is directed to work product or privileged communication. See,

e.g., Rakes, 210 Va. at 547 (holding that the prior version of Rule 4:9's good cause requires that

"there must be a showing of some special circumstances in addition to relevancy"). The Court in

Rakes, explained that the "mere suspicion of counsel that [a claim adjuster] had made inconsistent

and incomplete statements is not a showing of good cause." Id. at 548.

Here, the circumstances which might justify good cause, as articulated by the Attorney

General, are that (1) the contents of the Sands Anderson report are not otherwise available to the

Attorney General and (2) reasons exist to doubt the accuracy of the reporting by FCPS of the Sands

Anderson's investigation's findings because of a parent's statements that they were told by a

school administrator that the School withheld the Commendations deliberately. See Pet. at 4.

The Virginia Supreme Court's decision in Rakes expressly rejects the idea that good cause

only requires a showing of relevancy or that there may be inconsistencies. See Rakes, 210 Va. at

547 ("there must be a showing of some special circumstances in addition to relevancy").

The Court notes that when the Attorney General is proceeding with civil investigative

demands under Va. Code § 59.1-9.10, and "[w]hen documentary material is demanded by a civil

investigative demand, said demand shall not: (1) contain any requirement that would be

unreasonable or improper if contained in a subpoena duces tecum issued by a court of this

CommonWealth; or (2) require the disclosure of any documentary material that would be

privileged, or production of which for any other reason would not be required by a subpoena duces

tecum issued by a court of the Commonwealth."

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 While § 2.2-521 does not contain an express comparison, the statute states that the circuit

court "may" issue the subpoena upon a showing of good cause. The discretionary authority vested

with the circuit court along with the required finding of good cause describes a statutory scheme

that requires the court to do more than rubber-stamp the Attorney General's request. The court

may and should consider the nature of the documents sought and the context in which it is sought,

balancing the Office of Civil Rights mandate to investigate discriminatory practices in educational

systems, the nature of public-school systems, and the concept of privilege and work product.

Good cause in the context of this case is inextricably bound with the nature and character

of the evidence being sought. Although the court had granted the parties request to bifurcate the

issue of privilege from the issue of good cause and sovereign immunity, it is for judicial economy

and to avoid unnecessary expenses attendant to a second round of hearings that the Court finds it

appropriate to address the issue of privilege and waiver in the event its findings that the § 2.2-521

did not apply to FCPS, the School Board, its board members, regional counsel, superintendent and

principal and that good cause has not been shown are determined to be wrong.

The findings and conclusions below are open to additional briefing if any party seeks to

expand the record upon which the decisions of this court are reviewed de novo. However, the Court

treats a request to subpoena ostensibly privileged communication at the pre-trial stage substantially

different then when the request is made in the context of litigation.

The doctrine cited by the Attorney General that FCPS cannot use the privilege as a sword

and shield is more applicable during litigation. At this point, the parties are using the public airways

to debate their grievances, and so requiring a party to assert privilege or prove the entitlement to

withhold documents on privilege is not as compelling as it would be once claims are asserted and

the parties are engaged in a truth finding function rather than a public debate.

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 The Court declines to find that good cause can be shown at the pre-trial stage when the

search is for impeachment or inconsistencies of statements rather than direct evidence.

Privileged Communication and Work Product

In the event, it is deemed an abuse of discretion not to issue subpoenas duces tecum targeted

to the work of law firms and lawyers hired by the Respondent, the Court examines the issues

regarding privilege.

Internal investigations are undertaken by corporations or organizations investigating

claims of corporate malfeasance. A modern practice has been to label some investigations as

"independent" — although, an entity that engages in an investigation into whether its own members

are engaged in wrongdoing must be independent of the wrongdoers for the investigation to be

valid. The public should encourage and support competent, independent, and impartial internal

investigations.

An investigation undertaken by an outside law firm and labeled as "independent" does not

eliminate the attorney client privilege or work product privilege. It merely adds additional

definitions to the relationship between the company and counsel, including the level of oversight

or guidance by the client and the expectations that counsel will reach a fair and impartial

conclusion without undue influence from the client.

Meanwhile, lawyers occupy a unique professional position with respect to the client. While

recognizing a fiduciary duty and their continued loyalty to their clients, lawyers remain officers of

the court and are not allowed to do everything and anything a client may ask of them. Every case

where counsel is called upon to advise the client requires a certain amount of independence.

Lawyers are not mere recorders or scriveners of a client's wishes and fail to meet the standard of

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care in instances where they decide to act by rubber stamping the client's conduct. In some

instances, they can even be made defendants if they adopt and support the client's malfeasance.

The attorney client privilege protects communications between lawyers conducting a bona

fide internal investigation for an entity and of the organization's management and employees.

Upjohn Co. v. United States, 449 U.S. 383 (1981). The privilege may be invoked to prevent

disclosure of privileged communications demanded by civil subpoenas or subpoenas issued by

criminal grand juries. See United States v. Euge, 444 U.S. 707, 714 (1980); In re Grand Jury

Proceedings, 473 F.2d 840, 842 (8th Cir. 1973). The privilege is overcome in civil litigation only

under the rare exception to the policy that preserves the privilege. Hickman v. Taylor, 329 U.S.

495, 513 (1947). The work-product doctrine protects the work product of lawyers (and their

agents) conducting an internal investigation and as stated, the attorneys owe a fiduciary duty to the

represent the client as well as observe their responsibilities under the applicable rules of

professional conduct.

FCPS even explored a method of producing the report without waiving the privilege but

understandably neither party can guarantee that waiver would not occur as a matter of law if the

report and its notes were produced for inspection. See Alec Koch, Internal Corporate

Investigations: The Waiver of Attorney-Client Privilege and Work Product Protection through

Voluntary Disclosures to the Government, 34 Am. Crim. L. Rev. 347 (1997).

Waiver

The attorney work product privilege is designed to shield "mental impressions,

conclusions, opinions or theories" of counsel and, consistent with privileges during civil discovery,

may be waived by the conduct of the party holding the privilege. New York Times Co. vs. United

States Dept of Justice, 939 F.3d 479, 494 (2d Cir. 2019). Although this decision from the federal

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court in the Second Circuit and is not binding, the well-reasoned analysis undertaken to weigh the

effects of public statements by a government official of otherwise protected under work product

tracks this court's analysis applied to the record here.

The extensive March 29, 2023, statement by FCPS leaves this Court no other option but to

require an in camera inspection of the report. Although the "sword and shield" doctrine is

applicable to judicial proceedings, at some point where the public body announces the undertaking

of an internal investigation and publishes its findings, it is reasonable to require the production of

those portions of the report disclosed under FCPS public statements. On the other hand, unless the

entire report has now been waived, the Court must ensure that release of the disclosed portion will

not reveal the mental impressions and opinions of counsel.

The Court agrees with FCPS that it does not necessarily require the disclosure of the

entirety of the report just because the party asserting the privilege identifies the investigation and

overall result of the investigation.

Moreover, FCPS argues that release of the report and names of individuals present a threat

to the subject of the investigation. Va. Code § 2.2-523 requires the Office of Civil Rights to keep

confidential all information collected prior to a public hearing and upon the conclusion of the

investigation redacting the identifies of parties involve or persons supplying information. The

Court assumes the Office of Civil Rights will comply with the laws of the Commonwealth as it

also assumes the bona fides of FCPS, in that it provided materials sufficient for the Office of Civil

Rights to have conducted its own investigation to reach the same conclusions as reported by Sands

Anderson.

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 CONCLUSION

The parties are requested to craft an Order reflecting the decision of the Court and adopting

and incorporating this Memorandum Opinion. No Final Order will be entered until a decision can

be made on whether it is necessary to supplement the record with further briefing on the issue of

privilege and waiver.

The Court will set this matter as a placeholder only on its Friday, September 1, 2023 -

10:00 a.m. for status or entry of an Order. No party is required to appear before the Court on that

date and at that time. The parties should continue to communicate with the law clerk to address

additional scheduling issues, keeping in mind that there will be a change of law clerks in mid-

August.

To summarize, the Court finds that § 2.2-521 does not authorize the issuance of a subpoena

to a public body and if such authority exists, in the absence of litigation or a claim, good cause

cannot be shown for the issuance of an investigative subpoena towards the report and notes of an

independent internal investigation undertaken by a law firm on behalf of the entity that hired the

law firm. If good cause is a lesser standard than as applied by the Court, then in examining further

the issue of privilege, and without prejudice, the Court finds that the March 29, 2023, statement

defines the portions of the report that should be disclosed.

AND THIS MATTER IS CONTINUED.

ENTERED this day of , 2023.

) 5411
JUDGE, Fairfax Circuit Court

Pursuant to Rule 1:13 of the Rules of the Supreme Court of Virginia,

the Court dispenses with the endorsement of this Order

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