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Bond v. Town of Windham

Superior Court of Maine, Cumberland

June 5, 2018

CHRISTOPHER A. BOND, Petitioner
v.
TOWN OF WINDHAM, Respondent

          ORDER ON PETITIONER'S MOTION FOR RECONSIDERATION

          Nancy Mills Justice

         Before the court is petitioner's motion to reconsider the court's decision and order dated March 26, 2018. In his motion, petitioner requests that the court amend its prior order to reflect that the documents sought by petitioner are not protected by the work product doctrine and to grant petitioner access to those documents pursuant to the Freedom of Access Act. 1 M.R.S. § 408 (2017). For the following reasons, the motion is denied.

         Standard of Review

         A motion for reconsideration "shall not be filed unless required to bring to the court's attention an error, omission or new material that could not previously have been presented." M.R. Civ. P. 7(b)(5). "A motion for reconsideration of the judgment shall be treated as a motion to alter or amend the judgment." M.R. Civ. P. 59(e). Courts should order relief pursuant to M.R. Civ. P. 59(e) when it is "reasonably clear that prejudicial error has been committed or that substantial justice has not been done." Cates v. Farrington, 423 A.2d 539, 541 (Me. 1980).

         Discussion

         Petitioner argues that the documents are not protected work product for two reasons. First, petitioner argues that respondent has waived the right to assert the work product protections because respondent failed to identify specific documents and assert the nature of their protected status on the privilege log that respondent furnished to petitioner. Second, petitioner argues that the documents are not protected work product because they were not sought in the course of a court proceeding and because no pending controversy exists. Additionally, petitioner argues that the court committed error by assigning him the burden to show a substantial need for the material contained in the requested documents.

         Petitioner's first and second arguments were either previously presented or could have been presented in petitioner's earlier submissions to the court. Accordingly, neither argument constitutes grounds for reconsideration of the court's order. M.R. Civ. P. 7(b)(5). Notwithstanding, the court briefly addresses the first two arguments to show that neither argument warrants the relief sought by petitioner in his motion to reconsider.

         Contrary to petitioner's first argument, respondent was not required to comply with the requirements contained in M.R. Civ. P. 26(b)(5)(A) when responding to petitioner's request for documents. Dubois v. Office of the Attorney General, 2018 ME 67, ¶ 12, __ A.3d __. Respondent's written notice stating that it was withholding certain documents because they were confidential communications was sufficient to provide notice to petitioner that respondent was withholding the documents because they "would be within the scope of a privilege against discovery or use as evidence" 1 M.R.S. §§ 402(3)(B), 408-A(4) (2017): see also id.

         Contrary to petitioner's second argument, documents are not considered "public records" if they "would be within the scope of a privilege against discovery or use as evidence ... if the records . . . were sought in the course of a court proceeding." 1 M.R.S. § 402(3)(B) (emphasis added). There is no requirement that the documents must have been sought in the course of a court proceeding or that a pending controversy must exist in order for respondent to claim that they are not "public records". Id.

         Additionally, documents are protected work product if they are "prepared in anticipation of litigation." M.R. Civ. P. 26(b)(3) (emphasis added); see also Springfield Terminal Ry. Co. v. Dep't of Transp., 2000 ME 126, ¶ 16, 754 A.2d 353. The documents are not required to have been created during the pendency of litigation in order to invoke the rule's protections. See 2 Harvey, Maine Civil Practice § 26:6 at 643 (3d ed. 2011); See Dubois, 2018 ME 67, ¶ 22, ___A.3d___.

         Similarly, unlike the attorney client privilege, there is no requirement that disclosure must seriously impair a pending investigation, litigation, or proceeding in order for a public body to invoke the protections of rule 26(b)(3). See M.R. Evid. 502(d)(6); M.R. Civ. P 26(b)(3). Petitioner relies on Springfield Terminal Ry. Co. v. Dep't of Transp. for the proposition that the work product doctrine may only be asserted when there is a pending controversy. In that case, however, the Law Court limited its analysis to whether the respondent created documents in anticipation of litigation and whether that anticipation was reasonable. Springfield Terminal Ry. Co.. 2000 ME 126, ¶¶ 20-24, 754 A.2d 353. Whether a controversy was pending at the time of the petitioner's FOAA request did not factor into the Law Court's analysis. See id.; see also Dubois v. Dep't of Envtl. Prot., 2017 ME 224, ¶¶ 15-17, 174 A.3d 314.

         Finally, petitioner argues that the court erred by placing upon him the burden to show that he has a substantial need of the materials contained in the documents he seeks to acquire. Once a party has established that a document is work product, the burden "shifts to the party seeking disclosure to demonstrate that it has substantial need of the materials and cannot obtain the document otherwise without undue hardship." Springfield Terminal Ry. Co., 2000 ME 126, ¶ 15, 754 A.2d 353 (citing M.R. Civ. P. 26(b)(3)). This burden remains even when a party is seeking access to documents pursuant to the FOAA. See id.

         Conclusion

         For the foregoing reasons, the court did not err when it held that the documents sought by petitioner would be within the scope of the work product privilege against discovery if those documents were sought in the course of a court proceeding. Consequently, the court did not ...


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