FERRANTE GROUP INC et al v. WESTBROOK, CITY OF et al
Filing
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MEMORANDUM DECISION ON DISCOVERY DISPUTE Terminated Hearings: The Telephone Conference set for 6/6/2011 at 8:00 AM has been CANCELLED. By MAGISTRATE JUDGE JOHN H. RICH III. (dfr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FERRANTE GROUP, INC., et al.,
Plaintiffs
v.
CITY OF WESTBROOK, et al.,
Defendants
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No. 2:10-cv-403-DBH
MEMORANDUM DECISION ON DISCOVERY DISPUTE
At my request, counsel for the defendants have submitted for my in camera review
various emails that they have withheld from production on the basis that those documents are
protected from discovery by the attorney-client privilege.
They have also submitted their
privilege log, which they prepared and provided to counsel for the plaintiffs, listing, inter alia,
these documents. The plaintiffs’ attorneys maintain that the documents must be produced. At
my request following a telephonic discovery conference, the attorneys for both sides have
submitted letter memoranda setting forth their legal arguments.
As I understand it, the plaintiffs’ initial request was made under Maine’s Freedom of
Access Act, which provides, in relevant part:
The Legislature finds and declares that public proceedings exist to aid
in the conduct of the people’s business. It is the intent of the Legislature
that their actions be taken openly and that the records of their actions be
open to public inspection and their deliberations be conducted openly. It
is further the intent of the Legislature that clandestine meetings,
conferences or meetings held on private property without proper notice
and ample opportunity for attendance by the public not be used to defeat
the purposes of this subchapter.
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1 M.R.S.A. § 401. In addition:
Except as otherwise provided by statute, every person has the right to
inspect and copy any public record during the regular business hours of
the agency or official having custody of the public record within a
reasonable period of time after making a request to inspect or copy the
record.
1 M.R.S.A. § 408(1). And, finally:
The term “public records” means any written, printed or graphic
matter or any mechanical or electronic data compilation from which
information can be obtained, directly or after translation into a form
susceptible of visual or aural comprehension, that is in the possession or
custody of an agency or public official of this State or any of its political
subdivisions, . . . and has been received or prepared for use in connection
with the transaction of public or governmental business or contains
information relating to the transaction of public or governmental
business, except:
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B. Records that would be within the scope of a privilege against
discovery or use as evidence recognized by the courts of this State in
civil or criminal trials if the records or inspection thereof were sought in
the course of a court proceeding[.]
1 M.R.S.A. § 402(3)(B).
The privilege at issue here is established by Maine Rule of Evidence 502:1
(b) General Rule of Privilege. A client has a privilege to refuse to
disclose and to prevent any other person from disclosing confidential
communications made for the purpose of facilitating the rendition of
professional legal services to the client (1) between the client or the
client’s representative and the client’s lawyer or the lawyer’s
representative, or (2) between the lawyer and the lawyer’s representative,
or (3) by the client or the client’s representative or the lawyer or a
representative of the lawyer to a lawyer or a representative of a lawyer
representing another party in a pending action and concerning a matter of
common interest therein, or (4) between representatives of the client or
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Federal Rule of Evidence 501 provides: “Except as otherwise required by the Constitution of the United Sates or
provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the
privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles
of the common law as they may be interpreted by the courts of the United States in the light of reason and
experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which
State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision
thereof shall be determined in accordance with State law.”
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between the client and a representative of the client, or (5) among
lawyers and their representatives representing the same client.
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(d) Exceptions. There is no privilege under this rule:
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(6) Public Officer or Agency. As to communications between a
public officer or agency and its lawyers unless the communications
concern a pending investigation, claim or action and the court determines
that disclosure will seriously impair the ability of the public officer or
agency to process the claim or conduct a pending investigation, litigation
or proceeding in the public interest.
Applying these rules to the documents at issue is a fairly straightforward task. The
defendants originally withheld about 300 pages of documents pursuant to the attorney-client
privilege, but then produced about 100 additional pages to the plaintiffs in a supplemental
discovery response. A number of the documents provided to the court by defense counsel are
not included in the privilege log, and, therefore, I will not consider them further.
After a careful review, I conclude that all of the disputed documents would ordinarily be
included within the attorney-client privilege and, thus, not be discoverable. However, as to three
of these documents, I cannot see how disclosure, even to the opposing party in a lawsuit based
on the events that gave rise to the litigation, will seriously impair the ability of the defendants to
defend this litigation. These documents, which are listed in the privilege log, bear Bates stamp
numbers 000786-788 and 001115. See Marquis v. City of Lewiston, Civil Action Docket No.
CV-88-358, CV 88-513, 1989 Me.Super.LEXIS 149, at *4 (Me. Super. July 19, 1989). The first
two documents are between William Baker and counsel and pertain to his request for copies of
his emails produced to plaintiffs; the third document is an out-of-office reply from Colleen
Hilton.
Plaintiffs’ counsel suggests that “as neither the Westbrook Police Department nor
William Baker is a party to this action, it is unclear whether they are a client for purposes of the
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privilege.” Plaintiffs’ letter brief dated June 2, 2011, at 3. To the extent that this is meant as an
argument that communications between Mr. Baker and defense counsel are not privileged – there
are no communications between counsel and “the Westbrook Police Department” – I reject the
argument. At the relevant time, Mr. Baker was Chief of Police for the defendant City of
Westbrook and, thus, one of the authorized representatives through which the City could act.
From all that appears, the individuals involved in the email chains who are not attorneys all fall
within the attorney-client privilege as it applies to municipalities. See generally Lerose v. United
States, No. 2:03-CV-02372, 2006 WL 304664, at *3 (S.D.W.Va. Jan. 11, 2006).
For the foregoing reasons, the defendants shall provide to the plaintiff the document
bearing Bates stamp numbers 000786-788 and 001115. All other disputed documents continue
to be protected by the attorney-client privilege as created and limited by applicable Maine law.
SO ORDERED .
Date this 2nd day of June, 2011.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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