Hughes v. Southern New Hampshire Services, Inc.
ORDER denying 22 Motion to Compel. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 11-cv-516-SM
Southern New Hampshire
O R D E R
In a case that has been removed from the New Hampshire
Superior Court and over which this court has federal-question
jurisdiction, see 28 U.S.C. § 1331, Patricia Hughes has sued her
former employer, Southern New Hampshire Services, Inc. (“SNHS”).
She states claims under both federal and state law, generally
asserting that she was discriminated against on account of her
Before the court is SNHS’s motion to compel
Hughes to produce all of her communications with the American
Diabetes Association (“ADA”).
For the reasons
that follow, SNHS’s motion to compel is denied.
In her complaint, Hughes alleges that she has type-one
diabetes, and that her condition requires her to eat certain
kinds of food, on a particular schedule, to avoid various
symptoms of her diabetes.
The basic thrust of her claims is
that SNHS, as her employer, failed to provide her with a
reasonable accommodation for her condition and terminated her
employment as a result of it.
At her deposition, Hughes indicated that before she filed a
complaint with the New Hampshire Commission for Human Rights
(“HRC”), she had contacted the ADA.
Specifically, she said that
she exchanged e-mails with the ADA’s Kathleen Gordon regarding
“diabetics and the law” and “her rights as a diabetic.”
Reply, Ex. 1 (doc. no. 27-1), at 2.
She further testified that
Attorney Gordon proofread a four-page narrative, which,
presumably, was a part of either an HRC complaint or a document
prepared for submission to the Equal Employment Opportunity
In a subsequent affidavit, Hughes
testified that: (1) “Attorney Katherine Gordon1 . . . provided .
. . her mental impressions and opinions on how [she] should
draft the Charge of Discrimination to be filed with the EEOC,”
Pl.’s Obj., Ex. 3 (doc. no. 24-4) ¶ 2; (2) she was told that all
of her communications with Attorney Gordon would be
confidential, see id. ¶ 3; and (3) she has not waived any
privilege that may attach to her communications with Attorney
Gordon, see id. ¶ 7.
At her deposition, Hughes referred to Attorney Gordon as
Kathleen, but, in her affidavit, referred to her as Katherine.
The court simply repeats that usage here, as it has no way of
knowing Attorney Gordon’s actual first name.
Hughes initiated her contact with the ADA in response to a
website that explains, among other things:
If you are being discriminated against because of your
diabetes at work . . . you can request assistance from
the American Diabetes Association.
. . . .
. . . A representative from the ADA’s Center for
Information and Community Support will send you a
packet of information and a form to request help from
one of the ADA’s legal advocates.
. . . .
When you send in a form requesting help from a legal
advocate, you can expect to receive information and
assistance from a lawyer specializing in diabetes
discrimination issues. Although all our legal
advocates are licensed attorneys, they are not able to
represent you and speaking with a legal advocate will
not create a client-attorney relationship.
The legal advocate you speak with will provide you
with information about your legal rights, provide
strategies for exercising your rights, give you tools
to use to advocate for yourself and negotiate a
resolution of your problem, and where necessary and
appropriate, guide you through the applicable legal
process. . . .
. . . .
All information you provide to us, including the fact
that you contacted us about a discrimination matter,
is treated confidentially and not shared outside of
legal advocacy staff unless you give us explicit
permission to talk to other about your case.
Def.’s Mot. to Compel, Ex. 1 (doc. no. 22-1), at 1.
After Hughes gave deposition testimony about her contact
with Attorney Gordon, who was acting in her capacity as an ADA
legal advocate, SNHS asked Hughes to produce her communications
with the ADA.
She has declined to do so, asserting attorney-
SNHS now moves for an order compelling Hughes “to produce
all [of her] communications with the ADA,” Def.’s Mot. to Compel
(doc. no. 22), at 4, which necessarily includes her
communications with her ADA legal advocate.
But, SNHS has not
complied with the local rules of this district, under which it
was obligated to “include, in [its] motion itself or in an
attached memorandum, a verbatim recitation of each
interrogatory, request, answer, response, and objection, or a
copy of the actual discovery document which is the subject of
“Unless otherwise limited by court order, the scope of
discovery . . . [extends to] any nonprivileged matter that is
relevant to any party’s claim or defense . . . .
information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of
Fed. R. Civ. P. 26(b)(1).
Rules of Civil Procedure (“Federal Rules”) permit a party to
“move for an order compelling disclosure or discovery,” Fed. R.
Civ. P. 37(a)(1), so long as “[t]he motion . . . includes[s] a
certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court
Here, SNHS seeks to compel the production of communications
between Hughes and an ADA legal advocate which, in Hughes’ view,
are protected by the attorney client-privilege.
The court of
appeals for this circuit has recently described the procedural
mechanics governing the invocation of the attorney-client
It is clear beyond hope of contradiction that the
party seeking to invoke the attorney-client privilege
must carry the devoir of persuasion to show that it
applies to a particular communication and has not been
waived. See In re Keeper of the Records [(Grand Jury
Subpoena Addressed to XYX Corp.)], 348 F.3d [16,] 22
[(1st Cir. 2003)]. Whatever quantum of proof is
necessary to satisfy this obligation, a blanket
assertion of privilege is generally insufficient. See
In re Grand Jury Proceedings, 616 F.3d 1172, 1183
(10th Cir. 2010); In re Grand Jury Matters, 751 F.2d
13, 17 n.4 (1st Cir. 1984); United States v. Lawless,
709 F.2d 485, 487 (7th Cir. 1983). Determining
whether documents are privileged demands a highly
fact-specific analysis — one that most often requires
the party seeking to validate a claim of privilege to
do so document by document. In re Grand Jury
Proceedings, 220 F.3d 568, 571 (7th Cir. 2000); In re
Grand Jury Matters, 751 F.2d at 17 n.4.
In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 71 (1st Cir.
The court’s characterization of the specificity required
to assert the attorney-client privilege is rooted in the Federal
Rules which provide, in pertinent part:
When a party withholds information otherwise
discoverable by claiming that the information is
privileged . . . the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents,
communications, or tangible things not produced
or disclosed — and do so in a manner that,
without revealing information itself privileged
or protected, will enable other parties to assess
Fed. R. Civ. P. 26(b)(5)(A).
Based on the submissions before it, the court has no way of
ascertaining whether Hughes’ invocation of the attorney-client
privilege meets the standard required by Rule 26(b)(5)(A).
there is a good reason for that: SNHS’s failure to provide
either the discovery request at issue, or Hughes’ response
thereto, as required by LR 37.1(a).
While Hughes does not rely
upon LR 37.1(a) in her objection to SNHS’s motion to compel, the
court cannot quite so easily move to the merits of this dispute.
In an opinion from the Seventh Circuit that was recently cited
by the First Circuit, the court noted:
Only when the district court has been exposed to the
contested documents and the specific facts which
support a finding of privilege under the attorneyclient relationship for each document can it make a
principled determination as to whether the attorneyclient privilege in fact applies. See In re Walsh,
623 F.2d [489,] 493 [7th Cir. 1980)]. Any attempt to
make this type of determination without this factual
foundation amounts to nothing more than a waste of
judicial time and resources. Cf. [United States v.]
Kis, 658 F.2d [526,] 540 [(7th Cir. 1981)].
Holifield v. United States, 909 F.2d 201, 204 (7th Cir. 1990)
(quoted in Mr. S., 662 F.3d at 71).
The Holifield court’s
concern was with a lack of specificity engendered by a blanket
assertion of privilege.
See 909 F.2d at 204.
But, its caution
against deciding questions concerning attorney-client privilege
without the benefit of specific facts seems also to counsel in
favor of denying SNHS’s motion to compel where, as in this
district, a party moving to compel discovery is charged with the
responsibility of exposing the court to the basic facts
surrounding the discovery dispute.
That is, when a party moving
to compel fails to comply with LR 37.1(a), the court has no way
of knowing whether the party resisting discovery has adequately
asserted a legal basis for its resistance, such as the attorneyclient privilege.
The bottom line is this.
“The attorney-client privilege is
the most venerable of the safeguards afforded to confidential
communications and is enshrined as such in the federal common
Mr. S., 662 F.3d at 70 (citing Upjohn Co. v. United
States, 449 U.S. 383, 389 (1981)).
At the same time, however,
“the cloak of confidentiality has costs as well as benefits, and
courts must take care to construe this privilege narrowly.”
S., 662 F.3d at 71 (citing In Re Keeper of the Records, 348 F.3d
Without the information required by LR 37.1(a), the
court is in no position to do a proper job of balancing the
countervailing interests that have been brought into play by
SNHS’s request for Hughes’ communications with Attorney Gordon
and Hughes’ assertion of the attorney-client privilege.
SNHS has failed to satisfy the requirements of LR 37.1(a), its
motion to compel is denied, but without prejudice.
On the chance that SNHS might be inclined to file a second
motion to compel the production of Hughes’ communications with
the ADA, the court makes the following observations for the
benefit of the parties.
First, notwithstanding both parties’
apparent reliance on New Hampshire’s law of privilege, subjectmatter jurisdiction in this case is based upon 28 U.S.C. § 1331,
and “[q]uestions of privilege in federal question cases are
governed by federal law.”
Shea v. Mcgovern, Civ. No. 1:08-
12148-MLW, 2011 WL 322652, at *5 (D. Mass. Jan. 31, 2011)
(citing Fed. R. Evid. 501).
Moreover, “[a] federal privilege
applies even if a federal civil action combines state and
federal law claims and the asserted privilege is relevant to
Shea, 2011 WL 322652, at *5 (citing Green v.
Fulton, 157 F.R.D. 136, 139 (D. Me. 1994); Krolikowski v. Univ.
of Mass., 150 F. Supp. 2d 246, 248 (D. Mass. 2001); Williams v.
City of Boston, 213 F.R.D. 99, 100 (D. Mass. 2003).
this court’s jurisdiction over Hughes’ claims rests upon 28
U.S.C. § 1331, federal privilege law applies.
While it may have
been permissible for the court to have applied New Hampshire
privilege law if it had reached the merits of the parties’
dispute over privilege, see Lluberes v. Uncommon Prods., LLC,
663 F.3d 6, 23 (1st Cir. 2011) (citations omitted), the court’s
denial of SNHS’s motion to compel gives the parties the
opportunity to frame their arguments under the correct law from
the start, in the event that SNHS opts to continue its pursuit
of Hughes’ communications with the ADA.
Having established the applicable substantive law of
privilege, the court further notes that under federal common
law, the attorney-client privilege protects both communications
to attorneys and communications from them.
With respect to the
(1) [w]here legal advice of any kind is sought (2)
from a professional legal adviser in his capacity as
such, (3) the communications relating to that purpose,
(4) made in confidence (5) by the client, (6) are at
his instance permanently protected (7) from disclosure
by himself or by the legal adviser, (8) except the
protection be waived.
Mr. S., 662 F.3d at 71 (quoting Cavallaro v. United States, 284
F.3d 236, 245 (1st Cir. 2002); citing 8 J.H. Wigmore, Evidence §
2292, at 554 (McNaughton rev. 1961)).
As the Mr. S. court went
on to explain, “[a] failure to satisfy any one of the enumerated
elements defeats the claim of privilege.”
662 F.3d at 71
(citing United States v. Wilson, 798 F.2d 509, 512–13 (1st Cir.
With respect to documents prepared by attorneys,
[t]he privilege . . . protects from disclosure
documents provided by an attorney if the party
asserting the privilege shows:
(1) that he was or sought to be a client of [the
(2) that [the attorney] in connection with the
[document] acted as a lawyer; (3) that the
[document] relates to facts communicated for the
purpose of securing a legal opinion, legal
services or assistance in legal proceedings; and
(4) that the privilege has not been waived.
Maine v. U.S. Dept. of Interior, 298 F.3d 60, 71 (1st Cir. 2002)
(quoting United States v. Bay State Ambulance & Hosp. Rental
Serv., Inc., 874 F.2d 20, 27–28 (1st Cir. 1989); citing Wilson,
798 F.2d at 512).
The court concludes with a final observation.
the benefit of an adequate record, it seems difficult to imagine
that Hughes’ communications with Attorney Gordon would not
qualify for the privilege.
The federal common law of privilege,
as formulated by the First Circuit, does not appear to require,
as a sine qua non, a formal attorney-client relationship of the
sort disclaimed by the ADA website.
See Mr. S., 662 F.3d at 71
(listing eight elements required to establish privilege).
In any event, it is up to SNHS to decide whether it still
wishes to attempt to acquire the communications between Hughes
and her ADA legal advocate.
If SNHS presses forward, and deems
it necessary to return to this court with a second motion to
compel, it should bear in mind the requirements of Rule 37(a)(1)
and LR 37.1(a).
Likewise, in response to any request for those
communications from SNHS, Hughes should bear in mind the
requirements of Rule 26(b)(5)(A).
For the reasons detailed above, SNHS’s motion to compel,
document no. 22, is denied.
United States Magistrate Judge
October 25, 2012
Simon Dixon, Esq.
Edward M. Kaplan, Esq.
Christopher James Pyles, Esq.