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Taghavidinani v. Riverview Psychiatric Center

United States District Court, D. Maine

August 3, 2017



          John C. Nivison U.S. Magistrate Judge.

         In this 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.


         Plaintiff is a former employee of the Riverview Psychiatric Center (“Riverview”). Defendant Jay Harper is the acting Superintendent of Riverview.

         In her 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.)

         On 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.)[1] 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.

         In 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 findings.

         On or 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. ¶ 3.)

         In 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.)

         The OAG 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.)

         Standard 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 provides:

         The 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 ...

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