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
                        ___________________________________

                              No. E2022-01498-COA-R9-CV
                          ___________________________________


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

1
 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

                                            -2-
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.

                                            -3-
        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,

 (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
                                            -4-
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., 

 (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, 

 (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., 

 (Tenn. Ct. App. 2002).
Accordingly, this Court must review these decisions using the “abuse of discretion”
standard of review. See 

       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
                                           -5-
        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, 

 (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, 

. 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, 

 (footnote omitted) (internal citations omitted).
                                                   -6-
       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., 

 (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, 

 (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, 

, 

, 

 (1975). Thus, the work product doctrine applies to
       both civil and criminal proceedings, although not necessarily in the same
       fashion. Coe v. State, 

 (Tenn. 2000); Boyd v. Comdata
       Network, Inc., 

. 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, 

 (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
                                          -7-
Am., No. M2012-00212-COA-R3-CV, 

, at *8 (Tenn. Ct. App. Feb. 28,
2013) (quoting The Tennessean v. Tenn. Dep’t of Pers., No. M2005-02578-COA-R3-CV,

, at *1 (Tenn. Ct. App. Apr. 27, 2007)). See State ex rel Flowers v.
Tenn. Trucking Ass’n Self Ins. Group Trust, 

, 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, 

 (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.

                                                   -8-
                    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, 

 (Tenn. Ct. App. 1985) (citing Southeastern Fleet
      Leasing Inc., v. Gentry, 

, 

-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., 

 (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., 

 (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, 

, (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., 

 (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., 

, 

      (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
                                           -9-
       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, 

 (4th Cir. 1982)); accord In re Sealed
       Case, 

 (D.C. Cir. 1982); S.T. Systems Corp. v. Maryland
       Nat. Bank, 

, 

 (1995). Also see, e.g., In re
       Kidder Peabody Sec. Litig., 

 (S.D.N.Y. 1996); Hartz
       Mountain Indus. Inc. v. Commissioner, 

, 

       (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, 

 (Ala. 1995).

Arnold, 

 (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 

. In concluding
                                          - 10 -
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

; see also Campbell Cnty. Bd. of Educ. v. Brownlee-Kesterson, Inc., 

 (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, 

, 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.” 

        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., 

, 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
                                                    _________________________________
                                                    THOMAS R. FRIERSON, II, JUDGE

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