Valerie Rheeder v. City of Marion, Iowa, Douglas Slagle, Shellene Gray, and Joseph McHale

IN THE COURT OF APPEALS OF IOWA

No. 20-1116
Filed November 23, 2021

VALERIE RHEEDER,
Plaintiff-Appellee,

vs.

CITY OF MARION, IOWA, DOUGLAS SLAGLE, SHELLENE GRAY, and
JOSEPH McHALE,
Defendants-Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,

Judge.

The defendants appeal interlocutory a discovery order in a sexual

harassment and retaliation suit. AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

Amy L. Reasner and Holly A. Corkery of Lynch Dallas, P.C., Cedar Rapids,

for appellants City of Marion and Joseph McHale.

Bridget R. Penick and Olivia N. Norwood of Fredrikson & Byron, P.A., Des

Moines, for appellant Douglas Slagle.

Michele L. Brott and Kacy L. Flaherty-Tarpey of Dentons Davis Brown, P.C.,

Des Moines, for appellant Shellene Gray.

Ann E. Brown of Ann Brown Legal PC, Cedar Rapids, for appellee.
2

Considered by Vaitheswaran, P.J., Schumacher, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021).
3

BLANE, Senior Judge.

Valerie Rheeder is a former employee of the City of Marion. She sued the

city and several of its employees (collectively the city) for sexual harassment and

violation of the Iowa Civil Rights Act during her employment. In this interlocutory

appeal, the city challenges a discovery order requiring it to turn over a redacted

portion of an investigatory report prepared by an attorney regarding Rheeder’s

allegations of sexual harassment. Rheeder argues the city is obligated to disclose

the full, unredacted investigatory report to be able to use it in support of its

Faragher-Ellerth affirmative defense.

We find the district court abused its discretion in ordering the entire report

disclosed to Rheeder. A limited portion of the redacted pages is discoverable as

relevant to Rheeder’s claims. The city has not waived its privilege as to the

remainder. Thus, we remand to the district court to allow the city to decide if it will

rely on the investigative report as part of its defense.

I. BACKGROUND FACTS AND PROCEDINGS

Valerie Rheeder worked as a part-time custodian for the Marion Police

Department starting in August 2018. About a year later, she filed this lawsuit

alleging Deputy Police Chief Douglas Slagle sexually harassed her. She claimed

that when she reported his conduct, Chief of Police Joseph McHale carried out an

inadequate investigation before formally concluding Slagle had not sexually

harassed her. McHale informed city administrators of Rheeder’s complaint and

that he had taken care of it.

Rheeder’s petition also asserted the city retaliated against her for making

the sexual harassment complaint. McHale gave her a written warning for her
4

communications with Slagle. She also contends that Administrative Manager

Shellene Gray confronted and threatened her about the sexual harassment

complaint.

A month or so after her complaint, Rheeder heard that the city had received

multiple allegations of sexual harassment against Slagle before he sexually

harassed her as well as a new complaint from another individual. She also learned

the department planned a second investigation to be conducted by someone

outside the department. The city hired attorney Frances Haas to investigate

Rheeder’s complaint and possible disparate treatment within the police

department. Attorney Haas conducted her investigation and submitted to the city

a confidential report (Haas report). The department placed Rheeder on leave

during the investigation. When she returned to her position, Gray was still her

manager. Rheeder complained she was not comfortable working with Gray, and

the city conducted another investigation of Gray’s conduct. The city then allowed

Gray to return to her position. Rheeder quit her job shortly afterward and filed this

suit.

Rheeder’s petition includes claims of sexual harassment and violations of

the Iowa Civil Rights Act1 by the city, Slagle, and Gray. Later, Rheeder amended

1 The Iowa Civil Rights Act provides:
It shall be an unfair or discriminatory practice for any . . . [p]erson to
refuse to hire, accept, register, classify, or refer for employment, to
discharge any employee, or to otherwise discriminate in employment
against any applicant for employment or any employee because of
the age, race, creed, color, sex, sexual orientation, gender identity,
national origin, religion, or disability of such applicant or employee,
unless based upon the nature of the occupation.
Iowa Code § 216.6 (2019).
5

her petition to include McHale in her Civil Rights Act claims. In its answer, the city

broadly denied the allegations. It also stated “the [c]ity promptly investigated all of

[p]laintiff Rheeder’s claims and promptly responded to all of [p]laintiff Rheeder’s

claims. The [c]ity denies [p]laintiff Rheeder’s claim it ignored ‘sexually harassing

conduct for years.’” It specifically answered:

. . . Defendants City and McHale promptly investigated all of
Plaintiff Rheeder’s claims asserted while employed and, where
appropriate within the City’s business judgment, provided prompt
remedial measures reasonably calculated to remedy Plaintiff
Rheeder’s claims.
....
. . . Even if a City employee committed any actionable
wrongful acts, which has been and is denied, Defendants City and
McHale exercised reasonable care to prevent such acts and Plaintiff
Rheeder unreasonably failed to take advantage of the preventative
and/or corrective opportunities the City offered in its written policies.

The city thus asserted what is known as a Faragher-Ellerth affirmative defense.2

This “two-part defense requires employers to show reasonable care was exercised

to ‘prevent and correct promptly any . . . harassing behavior’ and to further show

the claimant employee ‘unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the employer.’” Fenceroy v. Gelita USA.,

Inc., 908 N.W.2d 235, 242 (Iowa 2018) (quoting Farmland Foods, Inc. v. Dubuque

Human Rights Comm’n, 672 N.W.2d 733, 744 n.2 (Iowa 2003) (adopting the

defense)). The policy of the affirmative defense is to “encourage[] employers to

prevent workplace discrimination and harassment by adopting antidiscrimination

policies and complaint procedures or by taking other suitable action.” Id. In

2That term is based upon United States Supreme Court cases Faragher v. City of
Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524
U.S. 742 (1998).
6

Fenceroy, the supreme court addressed the question of privilege, holding “that an

employer who relies on a presuit investigation to support a Faragher-Ellerth

affirmative defense waives attorney–client privilege when the investigation is

conducted by an attorney.” Id.

Following Rheeder’s discovery requests, the city produced only a redacted

copy of the Haas report to Rheeder.3 The city redacted information it asserted was

not relevant to Rheeder’s complaint. The city also sought a protective order to

prevent disclosure of the redacted information, roughly the last seven pages of the

thirty-four page report and a few items from its Appendix A and Appendix B.

Rheeder resisted the protective order and moved to compel disclosure of the full,

unredacted Haas report.4

The city resisted, insisting the Haas report included investigation of

separate matters unrelated to Rheeder’s claims. It cited Rheeder’s discovery

request for “[a] complete copy of the investigative report of Frances Haas regarding

3 The confidential report consists of 34 typed pages, page 35 – Appendix A (list of
interviewed persons and their positions), and page 36 – Appendix B (list of
documents reviewed and source). The city produced the first 26 pages, one-half
of page 27 and redacted the bottom portion of page 27 through page 34. The city
also redacted the list of names in Appendix A on page 35 and four of the
documents and sources listed in Appendix B on page 36. For purposes of this
appeal, we have been provided an unredacted copy of the full confidential report
provided to the district court and reviewed in camera before issuing its order of
production.
4 As to the Haas report, the motion states:

Plaintiff is entitled to an unredacted version of Attorney Fran Haas’s
report. In the event that the Court determines that portions of the
report are privileged, Plaintiff is still entitled to discovery relating to
the identity of the complainant who contacted the City regarding the
sexual harassment of Plaintiff and all documents and information
relating to the nature of this person’s complaint.
7

Valerie Rheeder’s complaint of sexual harassment [and] retaliation.” The city

argued,

[T]he plain language of the request does not encompass the second
half of the report; the second half of the report is attorney client
privileged and such privilege has not been waived; and the second
half of the report is not relevant to Ms. Rheeder’s claims nor
reasonably calculated to lead to the discovery of admissible
evidence.

According to the city, “[b]y framing her request as she did, the Plaintiff herself

acknowledges this information is all that she is due.” The city also claimed only to

have placed in issue that part of the report necessary to its defense, so it “only

waived its attorney client privilege regarding Ms. Haas’ report with respect to Ms.

Rheeder’s claims and her lawsuit.” Therefore, according to the city, the

pronouncement of Fenceroy—cited by Rheeder—did not apply to the redacted

text. See Fenceroy, 908 N.W.2d at 242. Further, it argued, “[t]here is no authority

for Plaintiff’s position that the [city’s] waiver of attorney-client privilege with respect

to the investigation and report related to Plaintiff’s claims causes other, attorney

client privileged investigations to lose their privilege.”

The court ordered the city to submit the entire Haas report for an in camera

review. After the in camera review and a hearing on the matter, the court denied

the city’s request for a protective order as to the redacted portions and granted

Rheeder’s motion to compel, ordering the city to give her the full report. In doing

so, the court noted, “The question . . . is not whether the discovery sought by

Plaintiff includes information that will be admissible at trial; rather the question is

whether the information is discoverable.” Citing Fenceroy, the court held:

Plaintiff is entitled to the full and complete copy of Ms. Haas’
report. Defendants have not proven that this document is privileged,
8

and have waived any privilege they had for this document by their
plan to use the investigation and report to support their defense to
Plaintiff’s claims. If Defendants intend to use the report to support
their affirmative defense, Plaintiff may not be kept from disputing all
of the evidence in the report.

The city filed for interlocutory review. The supreme court granted the

application and transferred the case to us.

II. SCOPE OF REVIEW

We review the district court’s rulings on discovery for abuse of discretion.

Struve v. Struve, 930 N.W.2d 368, 277 (Iowa 2019). “In reviewing decisions

regarding discovery, we give the district court wide latitude.” Id. The district court

abuses its discretion when its decision is based on grounds that are “clearly

untenable or unreasonable.” Mitchell v. City of Cedar Rapids, 926 N.W.2d 222,

227 (Iowa 2019) (citation omitted). “A ruling based on an erroneous interpretation

of a discovery rule can constitute an abuse of discretion.” Id. (quoting Mediacom

Iowa, L.L.C. Inc. v. City of Spencer, 682 N.W.2d 62, 66 (Iowa 2004)).

III. ANALYSIS

We begin with the relevant principles of discovery and evidence.

“[T]he law favors full access to relevant information.” Mediacom Iowa,

L.L.C., 682 N.W.2d at 66 (citation omitted). The idea is that “litigants are entitled

to every person’s evidence” in the case. Id. (citation omitted). “Thus, the district

court should liberally construe our discovery rules.” Id. Parties are entitled to

discovery

regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action, whether it relates to the claim
or defense of the party seeking discovery or to the claim or defense
of any other party, including the existence, description, nature,
custody, condition, and location of any books, documents, or other
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tangible things, the identity and location of persons having
knowledge of any discoverable matter, and the identity of witnesses
the party expects to call to testify at the trial. It is not ground for
objection that the information sought will be inadmissible at the trial
if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.

Iowa R. Civ. P. 1.503(1).

Still, in general terms, privileged material is not discoverable. The rule

provides: “Parties may obtain discovery regarding any matter, not privileged.” Iowa

R. Civ. P. 1.503(1) (emphasis added). “[A] party is entitled to discover any

information that is not privileged and that is relevant to the subject matter of the

lawsuit.” Mediacom Iowa, L.L.C., 682 N.W.2d at 66. In other words, a party may

not discover privileged information unless there is a clear exception. “A party

resisting discovery through assertion of a privilege has the burden of showing that

a privilege exists and applies.” Exotica Botanicals, Inc. v. Terra Intern’l, Inc., 612

N.W.2d 801, 804 (Iowa 2000). “An asserted privilege is narrowly construed

because it is an exception to our rules governing discovery.” Id.

There are “avenues available to those who wish to resist discovery.”

Mediacom Iowa, L.L.C., 682 N.W.2d at 66. The one relevant here is a protective

order under Iowa Rule of Civil Procedure 1.504. See id. at 66–67 Relevance is

also a significant factor in discovery. Iowa Rule of Evidence 5.401 provides,

“Evidence is relevant if . . . it has any tendency to make a fact more or less

probable than it would be without the evidence; and . . . the fact is of consequence

in determining the action.”

With that backdrop, we turn to the city’s specific objections to Rheeder’s

discovery request.
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A. Rheeder’s discovery request

The city argues that Rheeder’s discovery request was limited to evidence

related to her sexual harassment and retaliation claims and does not encompass

the redacted portions of the confidential report. Rheeder requested “[a] complete

copy of the investigative report of Frances Haas regarding Valerie Rheeder’s

complaint of sexual harassment [and] retaliation.” And the district court ruled that

Rheeder was entitled to “the full and complete copy of Ms. Haas’ report.” After

finding that the city had not proven the document was privileged and had waived

any privilege by its plan to use the investigation and report to support its affirmative

defense, the court concluded: “If [the city] intend[s] to use the report to support [its]

affirmative defense, [Rheeder] may not be kept from disputing all of the evidence

in the report.” (Emphasis added.)

We recall that to establish the Faragher-Ellerth affirmative defense, the

employer must show it “(1) exercised reasonable care to prevent and correct

promptly any . . . harassing behavior, and (2) that the plaintiff employee

unreasonably failed to take advantage of preventive or corrective opportunities

provided by the employer or to avoid harm otherwise.” Farmland Foods, Inc., 672

N.W.2d at 744 n.2. And “an employer who relies on a presuit investigation to

support a Faragher-Ellerth affirmative defense waives attorney-client privilege

when the investigation is conducted by an attorney.” Fenceroy, 908 N.W.2d at

244. Assuming the city waived its privilege over the entire Haas report, the second

part would be discoverable under general discovery rules if it is “relevant to the

subject matter involved in the pending action.” Iowa R. Civ. P. 1.503(1).

Relevancy in the context of discovery is different from relevancy for admissibility—
11

the rule itself says inadmissibility “is not ground for objection . . . if the information

sought appears reasonably calculated to lead to the discovery of admissible

evidence.” Id.; see also Fagen v. Grand View Univ., 861 N.W.2d 826, 833 (Iowa

2015) (“In other words, relevancy to the subject matter of a lawsuit is broader than

relevancy to an issue specifically pled, because the rule permits a party to discover

inadmissible information as long as the request is reasonably calculated to lead to

the discovery of admissible evidence.”).

First, addressing the city’s contention Rheeder did not request the redacted

information, we do not read Rheeder’s discovery request as narrowly as the city

does. She requested a “complete” copy of the investigation into her claims. We

find no abuse of discretion in the court’s conclusion that Rheeder’s original request

encompassed the entire investigation report. Second, our job is to determine

whether the district court abused its discretion in concluding the city waived its

privilege over the redacted pages by determining they were relevant to the matters

in her action. To answer that, we turn to the question of the city’s waiver. 5

5 The city argues the district court abused its discretion by finding the redacted part
of the Haas report was not privileged or that the city waived the privilege. It argues:
The City and Mr. McHale have at all times asserted that the second
part of the Investigation Report is attorney-client privileged, that the
privilege was never waived, that they did not “inject” the second part
of the Investigation Report into the case and, in any event, the
second part of the Investigation Report is not relevant to Ms.
Rheeder’s case.
Iowa Code section 622.10(1)(2019) creates the attorney-client privilege.
Our law recognizes that a “confidential communication between an attorney and
the attorney’s client is absolutely privileged from disclosure against the will of the
client.” Fenceroy, 903 N.W.2d at 242–43 (citing Shook v. City of Davenport, 497
N.W.2d 883, 886 (Iowa 1993), abrogated on other grounds by Wells Dairy, Inc. v.
Am. Indus. Refrigeration, Inc., 690 N.W.2d 38, 48 (Iowa 2004)).
It is undisputed that Frances Haas is an attorney retained by the city to
investigate Rheeder’s and possibly others’ harassment or discrimination
12

B. Waiver.

In Fenceroy, the supreme court discussed how the assertion of the

Faragher-Ellerth affirmative defense impacts discovery of a confidential attorney

investigation relied upon and to be offered into evidence by the defense.6

Normally, the process of an investigation into a complaint is at issue
when the Faragher-Ellerth defense is asserted, “including what the
employer knew of the employee’s complaints and when.” When an
employer affirmatively relies on the reasonableness of its
investigation to support the defense, “[t]he only way that Plaintiff, or
the finder of fact, can determine the reasonableness of the
Defendant’s investigation is through full disclosure of the contents”
of the investigation. In order to adequately challenge a Faragher-
Ellerth affirmative defense, plaintiff must be permitted to probe the
nature and scope of the relied upon investigation. It would be
fundamentally unfair to allow an employer to shield material facts
from discovery simply by hiring the same attorney who conducted a
presuit investigation to represent the employer in the subsequent
civil action.
The key element behind this authority is that the Faragher-
Ellerth defense must not only be pled, but the employer must then
rely on the attorney’s investigation into plaintiff’s discrimination
allegations in proving the defense. When the reasonableness of the
investigation into the allegations is relied upon as a defense, the
contents of the investigation are placed into issue and become
subject to disclosure.

Fenceroy, 908 N.W.2d at 244 (citations omitted).

The city agrees it affirmatively pled the Faragher-Ellerth defense and

intends to rely on the Haas report as evidence supporting the defense but only to

complaints. The report states on its face: “CONFIDENTIAL—ATTORNEY-
CLIENT PRIVILEGE, ATTORNEY WORK PRODUCT.” Although such a label
does not automatically render the document privileged, our review confirms the
attorney-client relationship and that the confidential report is privileged under the
statute. The district court’s finding that the report, particularly that redacted, was
not privileged was clearly in error.
6 The affirmative defense allows an employer to avoid vicarious liability when it

responsibly acts to prevent workplace harassment or discrimination, as long as the
claim does not involve tangible employment action.
13

the extent the report relates to Rheeder; that portion which it has produced. The

city takes issue with the court’s ruling for two reasons. First, that it never waived

privilege as to the redacted portion of the report dealing with disparate treatment.

And second, that it never put the redacted part of the report into issue because it

did not intend to rely on that portion to support its affirmative defense.

Rheeder counters there is no authority to support the argument that the city

can sever the allegedly unrelated parts of the investigative report for discovery

purposes. She argues that by asserting an affirmative defense it exercised

“reasonable care . . . to ‘prevent and correct promptly any . . . harassing

behavior,’” the city put Haas’ investigatory efforts into issue in the case. Id. (citation

omitted).

Generally, under Fenceroy, discovery of the otherwise confidential report is

required and imposes implied waiver because it is the “only way that

[Rheeder] . . . can determine the reasonableness of the [city’s] investigation.” Id.

“In order to adequately challenge a Faragher-Ellerth affirmative defense, plaintiff

must be permitted to probe the nature and scope of the relied upon investigation.”

Id. “When the reasonableness of the investigation into the allegations is relied

upon as a defense, the contents of the investigation are placed into issue and

become subject to disclosure.” Id. “[A] basic component of a fair trial requires that

when a party injects a legal issue into a lawsuit, the opposing party is entitled to

discover the relevant evidence concerning the issue.” Id. at 234.

But those general principles have some limitations. In Fenceroy, our

supreme court cited favorably to several cases that provide guidance on this issue.

In Harding v. Dana Transport, Inc., “the adequacy or reasonableness of the
14

investigation was the relevant fact injected into the lawsuit by the defendant, which

made the content of the investigation relevant.” 914 F. Supp. 1084, 1096 (D.N.J.

1996) (emphasis added). Thus, the court must decide if particular content of the

report is relevant and must be produced. See EEOC v. Outback Steakhouse of

Fla., Inc., 251 F.R.D. 603, 612 (D. Colo. 2008) (“The Court agrees that to the extent

defendants have asserted the Faragher/Ellerth affirmative defense, they have

waived the protections of the attorney-client privilege and work product regarding

investigations into complaints made by female employees.” (emphasis added)). In

Walker v. Cnty. of Contra Costa, 227 F.R.D. 529, 535 (N.D. Cal. 2005), the court

emphasized that only similar complaints of sexual harassment to that raised in

plaintiff’s case are within the waiver and discoverable. “If Defendants assert as an

affirmative defense the adequacy of their pre-litigation investigation into Walker’s

claims of discrimination, then they waive the attorney-client privilege and the work

product doctrine with respect to documents reflecting that investigation.” Id.

(emphasis added). Again, the implied waiver is only related to the investigation

that pertains to the particular claim. The parties also cite us to Koss v. Palmer

Water Department, 977 F. Supp. 2d 28, 29–30 (D. Mass. 2013). In that case, the

court found that even though the assertion of the Faragher-Ellerth affirmative

defense waived the attorney-client privilege and work-product protection for the

bulk of the documents submitted, after an in camera review, some redactions were

nonetheless appropriate.

We find based on these cases that, contrary to Rheeder’s assertion, the

implied waiver does not automatically render the entire confidential report

discoverable by Plaintiff. When the city claims the non-produced portion of the
15

report is not relevant and should still be considered privileged, the court in

conducting an in camera review must decide if the redacted portion of the report

is relevant to Rheeder’s claim, or similar claims involving the alleged harasser, or

necessary for Rheeder or the trier of fact to challenge or evaluate the adequacy

and reasonableness of the investigation.

The district court found that “Plaintiff is entitled to the full and complete copy

of Ms. Haas’ report. Defendants have not proven that this document is privileged,

and have waived any privilege they had for this document by their plan to use the

investigation and report to support their defense to Plaintiff’s claims.” (Emphasis

added.) The court’s finding that the city’s “plan to use the investigation and report

to support their defense” waived the privilege is inconsistent with the law discussed

above. The city did not plan to use the redacted portion of the report. The district

court also did not employ an appropriate relevancy determination in its in camera

review as discussed above. On our review of the district court discovery order and

our in camera review of the full report, we conclude the district court abused its

discretion in ordering production of the entire redacted portion of the report.

We are somewhat constrained in describing or setting forth contents of the

redacted portion of the Haas report, since to do so would potentially disclose

privileged information. In the Haas report the produced first page states:

I was retained by the City of Marion, Iowa (“City”) to conduct
a legally privileged investigation into the City’s Police Department
(“Department”). The scope of this investigation included: (1) an
internal harassment complaint lodged by an employee of the
Department against Deputy Chief Doug Slagle; and (2) a reported
concern that members of the Department[’s] management were
treating employees differently on the basis of sex.
16

Attorney Haas submitted to the city one report on both phases of her investigation.

The results of the investigation could well have been divided into two separate

reports. But redaction seems like a reasonable way of severing the two

investigations.

Haas’ investigation into the city police department’s possible disparate

treatment on the basis of sex is unrelated to Rheeder’s claims of sexual

harassment by Slagle. There are a few relatively small references in the redacted

information where there is mention of what would be Slagle’s alleged sexual

harassment of Rheeder. The first is found at section 2.,c.,i., the first two sentences.

The second is in the same section, the first two sentences of the third paragraph.

The third is found in the first full paragraph of section 2.,c.,vi., on page 33 of the

Haas report. Under Fenceroy, we find these three specific portions appear to be

relevant and necessary for Rheeder to challenge the adequacy and

reasonableness of the investigation, or for the trier of fact to evaluate the adequacy

and reasonableness of the investigation. Therefore, there is an implied waiver as

to this limited information and Rheeder’s motion to compel should be granted in

this regard.

Also, the city redacted the names and positions listed in Appendix A, page

35 of the Haas report. On page 1 already produced, under “Summary of

investigative work,” Haas wrote: “In the course of this investigation, I interviewed

seventeen individuals listed in Appendix A. I interviewed some of these individuals
17

more than once.”7 Appendix A does not specify which individuals listed were

interviewed in connection with Rheeder’s sexual harassment claim or the disparate

treatment investigation. We find that since certain witnesses on the list were

interviewed concerning Rheeder’s sexual harassment claim, and are relevant and

may well be necessary for her to challenge the adequacy and reasonableness of

the investigation, or for the trier of fact to evaluate the adequacy and

reasonableness of the investigation, those witnesses are relevant and subject to

discovery. The city is obligated to disclose those particular names and positions

from Appendix A interviewed regarding Rheeder’s claim. Based upon our own in

camera review, we find the remainder of the redacted portion of the report should

remain privileged and not subject to production as it is not related to Rheeder’s

claims and is not relevant under the standard discussed above.

As discussed in Fenceroy, once the city is informed of this ruling and the

required disclosure, it has the right to withdraw the reliance on the report to support

the Faragher-Ellerth affirmative defense and avoid production. 908 N.W.2d at 242.

Upon remand, the district court is to issue an order consistent with this opinion and

then, if the city requests to withdraw reliance on the Haas report, the court will need

to make a record consistent with Fenceroy.

C. Relevance, confusion of issues, and undue prejudice

The city, invoking Iowa Rule of Evidence 5.403, argues that the redacted

portion of the investigative report should be privileged from discovery because its

7The city has already disclosed this information on page one of the portion of the
Haas report produced to Rheeder as part of discovery under the stipulated
protective order.
18

revelation would unduly prejudice the defendants and confuse the issues before

the court. The city further avers that discovery of the document will disrupt the

lives of third parties who may find themselves involved in an unwanted lawsuit.

Rheeder responds that the city’s evidentiary objections are not appropriate in the

context of discovery. We agree. The question before the court was not whether

the evidence was admissible at trial, but subject to the implied waiver and

discoverable. As discussed above, to be discoverable, it must be non-privileged

and relevant. Iowa R. Civ. P. 1.504. And “[i]t is not ground for objection that the

information sought will be inadmissible at trial” as long as the information “appears

reasonably calculated to lead to the discovery of admissible evidence.” Id. We

conclude the limited further disclosure of the redacted portion of the report will not

unduly prejudice the city or confuse the issues.

D. Third-party entanglement

The city finally argues that revealing the redacted portion of the report will

drag unwilling third parties into the light, exposing them to unwanted public scrutiny

and making them parties to an undesirable legal process. In order for an issue to

receive appellate review it must be raised before, and decided by, the district court.

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). When a district court fails

to rule on an issue properly raised the raising party must file a motion requesting

a ruling in order to preserve error for appeal. Id. The district court must explicitly

rule on the issue to be appealed, passing reference to similar topics is insufficient.

See Addison Ins. Co. v. Knight, Hoppe, Kurnik & Knight, L.L.C., 734 N.W.2d 473,

480 (Iowa 2007). However, the rule is not formalistic; if the court’s ruling indicates

that the court considered the issue and ruled on it, even if the logic is not clear,
19

error is preserved. Lamasters, 821 N.W.2d 856, 864. This system gives the district

court the opportunity to correct potential errors and prevents novel arguments from

being raised on appeal. In the instant case the city admits in its brief that the district

court did not address the argument about third party entanglement. As such, error

was not preserved.

IV. CONCLUSION.

We find the district court abused its discretion when it ordered the entire

redacted portion of the confidential report to be produced. We find on our in

camera review that a limited portion within the redaction is subject to discovery by

Rheeder consistent with this opinion and that the district court is directed to issue

such order on remand.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.