United States District Court, D. Maine
ORDER ON MOTION FOR PROTECTIVE ORDER
C. Nivison U.S. Magistrate Judge.
action, Plaintiff Jennifer Taghavidinani alleges that
Defendants discriminated against her based on her disability
and whistleblower status, and based on her participation in
free speech activity. The matter is before the Court on
Defendants' motion for protective order. (Motion, ECF No.
41.) Following a review of the record, and after
consideration of the parties' arguments, the Court grants
in part the motion.
is a former employee of the Riverview Psychiatric Center
(“Riverview”). Defendant Jay Harper is the acting
Superintendent of Riverview.
complaint, Plaintiff alleges that another Riverview employee,
“Director JC, ” reported a “pepper spray
incident” and was subsequently fired. The incident
occurred in December 2013. According to Plaintiff, Defendant
Harper told others that Plaintiff would be
“next.” (Am. Compl. ¶ 39.)
March 30, 2017, during a telephonic conference to address
certain discovery issues, the Court considered the
parties' arguments as to whether documents related to JC
were relevant and discoverable. Following the conference, the
Court ordered Defendants to produce the requested documents
“subject to any non-relevance related objections
Defendants believe are applicable.” (Mar. 30, 2017
Report of Tel. Conf. and Order ¶ 2, ECF No. 34.) On
April 6, 2017, the Court further directed Defendants to file
a motion for protective order if they intended to withhold
documents. (Apr. 6, 2017 Report of Tel. Conf. and Order
¶ 1, ECF No. 39.) Through their motion for protective order,
Defendants ask the Court to determine that they are not
obligated to produce eight of the requested documents, citing
the attorney-client and work product privileges, and 5 M.R.S.
§ 7070, which provides for the confidentiality of
certain personnel records.
support of the motion for protective order, Defendants
submitted the Declaration of Deputy Attorney General Susan
Herman (ECF No. 41-1). The declaration supports the following
about October 9, 2014, the Office of the Attorney General
(OAG) received a courtesy copy of a complaint to be filed by
JC with the Maine Human Rights Commission (MHRC). In the
complaint, JC asserted claims related to the termination of
her employment at Riverview. (Herman Declaration ¶ 2.)
Upon receipt of the complaint, the OAG and Riverview were on
notice of JC's intent to commence an administrative
proceeding before the MHRC and reasonably anticipated that JC
would initiate litigation against Riverview. (Id.
October 2014, Deputy Attorney General Herman asked Laurel
Shippee, the State Equal Employment Opportunity (EEO)
Coordinator, to conduct a confidential investigation of the
allegations contained in JC's complaint. (Id.
¶ 4.) Attorney Herman asked Ms. Shippee to investigate
in order to acquire factual information, as well as Ms.
Shippee's factual findings, conclusions and opinions, for
Attorney Herman's use or use by another attorney in the
OAG in connection with their effort to provide legal advice
to Riverview and to Superintendent Harper regarding the
proceedings before the MHRC and in any subsequent litigation.
(Id. ¶ 5.) Attorney Herman also asked Ms.
Shippee to provide an executive summary of her investigation,
which Ms. Shippee did at the conclusion of her investigation.
(Id. ¶ 6.) Attorney Herman reports that to the
best of her knowledge, Ms. Shippee's executive summary
and her investigative file have not been released to any
third party, and they have been kept confidential.
(Id. ¶ 7.)
represented Riverview in JC's proceeding before the MHRC.
(Id. ¶ 8.) The proceeding terminated on
February 3, 2017, after JC requested and received a
right-to-sue letter from the MHRC. (Id. ¶ 9.)
of Review 1.Attorney client privilege Federal Rule of
Evidence 501 defines, in the first instance, the application
and scope of the attorney-client privilege. The Rule
common law-as interpreted by United States courts in the
light of reason and experience-governs a claim of privilege
unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a
claim or defense for which state law supplies ...