Higgins v. Town of Concord et al

Filing 58

Magistrate Judge Donald L. Cabell: ORDER entered. ORDER ON PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY granting 45 Motion to Compel. See attached order for full details. (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PAMELA HIGGINS,
Plaintiff,
v.

Docket No. 16-cv-10641-DLC

TOWN OF CONCORD, KATE HODGES,
and CHRISTOPHER WHELAN, in their
individual capacities,
Defendant.

ORDER ON PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY
(DKT. 45)
CABELL, U.S.M.J.:
Now pending is the plaintiff’s motion to compel responses to
discovery (Dkt. No. 45).

Specifically, the plaintiff seeks an

order compelling the defendants to respond to discovery requests
seeking

documents

and

information

about

(1)

the

internal

investigation that led to her Last Chance Agreement (LCA), and (2)
other employees subject to LCAs. The defendants oppose the motion.
(Dkt. No. 46).
Federal Rule of Civil Procedure 26 provides that “[p]arties
may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense….”
26(b)(1).
information.

Rule

26(b)

permits

liberal

Fed. R. Civ. P.

discovery

of

relevant

In re New England Compounding Pharmacy, Inc. Product

Liability Litigation, MDL No. 13-2419-FDS, 2013 WL 6058483, at *
3 (D. Mass. November 13, 2013).

The defendants argue that the

evidence sought is not relevant to plaintiff’s claims.
in

addition

that

LCAs,

while

admittedly

not

They argue

privileged,

are

protected from routine disclosure under state law.
The Court does not find these arguments compelling here.
Rather, the Court is persuaded that the information sought is
relevant in light of the plaintiff’s claims, and the defendants
moreover provide no authority for the assertion that state law
shields agreements like the LCAs from disclosure. 1

The plaintiff

claims that the defendants treated her differently because she
took FMLA leave, and subsequently forced her to sign the LCA, and
then forced her to resign.
other

employees

who

Evidence of how the defendants treated

received

LCAs

plaintiff’s claims of maltreatment.

could

be

relevant

to

the

Accordingly, the plaintiff’s

motion to compel is ALLOWED, subject to the following limitations.
Limitations on Disclosure
1.

With respect to all materials disclosed by defendants

to plaintiff’s counsel of record, plaintiff’s counsel (and members
of counsel’s office who are directly engaged in assisting in the

1

Of note, it appears that the plaintiff has already received one of the three
LCAs at issue because the employee involved consented to its production, and a
second employee’s attorney is in discussions with plaintiff’s counsel to try to
work out an agreement on production. The third employee refused to consent to
production. (Dkt. 46, p.6).
2

litigation of this case, and other persons retained by plaintiff’s
counsel for the purpose of assisting in the litigation of this
case) may further disclose such materials only for the purpose
of the litigation of this case.
2.

Plaintiff’s

counsel

may

disclose

such

materials

to

potential witnesses only for the purpose of the litigation in this
matter, provided that counsel has made a good faith determination
that such disclosure is necessary to the proper preparation and
execution of the lawsuit. To the extent any such materials
contain social security numbers, dates of birth, home addresses,
names of minor children, o r financial account numbers of third
parties, plaintiff’s counsel must redact the data from the copies
of any materials shown to any witnesses.
3.
is

No one receiving any materials pursuant to this Order

permitted to

further

disseminate

or

further

disclose

such

materials or information for any purpose at any time.

SO ORDERED.

/s/ Donald L. Cabell
DONALD L. CABELL
United States Magistrate Judge
DATED:

May 23, 2017

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