CHRISTOPHER A. BOND, Petitioner
TOWN OF WINDHAM, Respondent
ORDER ON PETITIONER'S MOTION FOR
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.
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
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.
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.
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.
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.
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,
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.
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.
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 ...