The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. CIVIL ACTIONS
Edward Kelmenson, M.D.
Plaintiff
Individuals Described in Paragraph 5 and 6
of the March 19, 2004 Affidavit of
Attorney Charles E. Gilbert, I11
ORDER (Motion for
Protective Order)
Eastern Maine Medical Center,
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Individuals Described in Paragraph 5 and 6
of the March 19, 2004 Affidavit of
Attorney Charles E. Gilbert, I11
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Pending before the court is the motion of Charles E. Gilbert, 111, Esq. for a
protective order relieving him from any obligation to submit to examination on
depssition regarding the identities of persons who provided him with irformztion that
may bear on a medicai negiigence case in which Giibert appears as piaintiE2s counsei.
The court has considered the parties' submissions on the motion. The background of the
actions at bar is set out in a limited way in the court's order dated November 10, 2004.
The present proceedings are separate but, at least for present purposes, have essential
common elements and so are addressed in this consolidated order.
Pursuant to the court's November 2004 order and a subsequent order issued on
January 3, 2005, following a discovery dispute conference, counsel for the plaintiffs
deposed Gilbert for the purpose of creating a predicate record on which to develop the
issue at hand. At those depositions, which, because the proceedings at bar are distinct,
were separate but sequential, plaintiffs' counsel asked Gilbert to identify the names of
those persons who provided him with the information set out in paragraphs 5 and 6 of the
rule 56(f) affidavit that Gilbert had submitted in response to a summary judgment motion
filed by EMMC in the underlying malpractice case.' In his affidavit, Gilbert stated that
he spoke with several people "[als part of my investigation of this matter [the underlying
negligence case]." Stating that these sources did not wish to be identified, he then
described some of the information they provided to him. At the deposition, Gilbert
declined to identify those sources, asserting, among other things, that any such response
constituted w ~ r kproduct and was not subjert, tq compelled disclosure For the reasons
set out below, the court agrees that, as the issue has been pursued here, the identities of
warrant disclosure.
As a general matter, through the discovery process a party is entitled to obtain
information about "the identity and location of persons having knowledge of any
discoverable matter." M.R.Civ.?. 26(bj(l). Here, the plaintiffs seek to compel Gilbert KO
provide information that is more specific than this allowance: they have posed questions
relating directly to the identities of persons who, directly or indirectly, provided Gilbert
with investigative information that may be relevant to the underlying action for
professional malpractice. In response, Gilbert has invoked the conditional privilege of
work product. This triggers a burden-shifting analysis: the party asserting the work
product privilege bears the burden of demonstrating the applicability of that doctrine, and
if tiiai burden is met, then the parry seeking discovery must demons~ratetnat,
notwithstanding the work product quality of the requested information, non-disclosure
exceeds the scope of the privilege. Springfield Terminal Railway Co. v. Department of
' For the reasons set out in the November 2004, the affidavit remains under seal. This
order will not be impounded because it does not contain previously undisclosed
information that is confidential under 24 M.R.S.A. fj 2857.
Transportation. 2000 M E 126, 15, 754 A.2d 353, 257. Even in this latter instance,
there is an absolute privilege that protects against the disclosure of an attorney's mental
impressions, conclusions, opinions and legal theories. Id.
The court takes a particularly expansive view of the work product protection
because, here, the plaintiffs seek to extract information from the attorney who represents
2 claimant in a related case. Although the record does not support Gilbert's contention
that the plaintiffs' efforts to depose him amount to harassment, when it is seen in more
general terms, a practice of pursuing discovery directly from trial counsel, even where the
attorney is counsel of record in a separate but related case, is properly characterized "as
disruptive [to] the adversarial nature of our judicial system," and it can only inhibit an
attorney's inclination to properly investigate the circumstances that did or could generate
a legal claim for concern that those investigative efforts and analytical process will be
subject tc> dirclosure. See Shelton v. American motor.^ Corp., 805 F.2d 1323, 1327 (gth
Cir. 1986).
'J'he court treats the uciverse P : ~ ~ P _ C ~ Pm2teria!s
_-~ iz a bread way. The ! 2 n mbUUbU
119m~
of rule 26(b)(3) purports to protect against the disclosure only of "documents and
tangible things." Here, the plaintiffs do not seek to compel production of such materials.
Rather, they want to compel Gilbert to provide testimonial (i.e., non-documentary and
intangible) evidence about the identity of those persons who provided him with certain
information. The seminal work product case is Hickman v. Taylor, 329 U . S . 495 (1947).
There, the Supreme Court defined "work product" as information contained "in
interviews, statements, memoranda, correspondence, briefs, mental impressions, personal
beliefs, and countless other tangible and intangible ways." Id. at 51 1. One leading
commentator has noted that although the work product rule framed in the rules of civil
procedure purports to apply only to tangible material, "Hickman v. Taylor c~ntinuesto
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l ~ wurK - within iis definition that is not embodied in iangibie
form. . . .Indeed, since intangible work product includes the thoughts and recollections of
counsel, it is often eligible for the special protection accorded opinion work product." 8
Wright and Miller, FEDER~L
PRACTICE
AND PROCEDURE
§ 2024 (1994). Therefore, the
court builds this identification of protected material into the work product privilege,
either through an expansive interpretation of rule 26(b)(3) or as an area that is subject to
protection under Hickman and incorporated into the discovery rules more generally under
rule 26(c) (authorizing the court to issue a protective order "for good cause shown. . .").
Against this backdrop, the court concludes that, in the circumstances at bar, the
plaintiffs' discovery designed to determine the nature of an attorney's investigation into a
potential legal claim can only amount to a revelation of the attorney's work product and
potential trial preparation. The determinative aspect of the plaintiffs' discovery request
seeks the identity specifically of those persons from whom Gilbert learned certain
information. This information is qualitatively different from a more general discovery
request for the identity of persons with knowledge about the case.2 The court is
persuaded by the analysis in Commonwealth of Massachusetts v. First National
Supermarkets, Inc., 112 F.R.D. 149 (D.Mass. 1986). There, the court concluded that
disclosure of the names of people whom an attorney interviewed likely amounts to a
disclosurp c f . t f ? attorzey's
~ theory and approach to the clairn. Id, at 1512153. See also
Shelton, 805 F.2d at 1329 (work product privilege was held to protect against compelled
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because counsel's review of any such documents would provide a window into her
analysis of the case). Here, as he stated in the affidavit, Gilbert had contact with certain
people as part of his investigation into the underlying negligence claim. The disclosure
of the identities of those persons is probably tantamount to a disclosure of legai theories
or factual claims that he has considered.
The plaintiffs urge that the work product privilege is not available to Gilbert
because, under rule 26(b)(3), such a protection is afforded only to "a party." The
plaintiffs make a related argument that Gilbert did not develop the information at issue
"in anticipation of litigation" in this case. Rather, his investigation related only to the
underlying action, which is a separate proceeding. These arguments mq be seen to
chzllenge C-ilbert's standing to assert the ~ o r prodiic;
k privilege. The effects af this
multiplicity of proceedings has been persuasively addressed in the following way:
Documents prepared for one who is not a party to the present suit are wholly
unprotected by Rule 26(b)(3) even though the person may be a party to a closely
' In fact, in the underlying negligence action, EMMC propounded interrogatories to the
claimant, seeking this more general information. Any issue regarding the adequacy of
the claimant's responses to those interrogatories cannot be addressed in this case.
related lawsuit in which he will be disadvantaged if he must disclose in the
present suit. Thus suppose A and B are bringing independent antitrust actions
against the same defendant based on the same charges. Documents that A has
prepared in anticipation of the litigation would be within the qualified immunity
in his own suit but would be freely discoverable by defendant on a subpoena
duces tecum issued in connection with the suit brought by B. Such a result would
be intolerable. Fortunately the courts need not be confined by a literal reading of
Rule 26(b)(3) and can continue to arrive at sensible decisions on this narrow
point. To the extent that Rule 26(b)(3), literally read, seems to give insufficient
protection to material prepared in connection with some other litigation, the court
can vindicate the purposes of the work-product rule by the issuance of a
protective order under Rule 26(c).
WRIGHTAND ~ ~ I L L E R$2024.
,
The causes of action asserted in the two complaints at bar are of a wholly
different character than Gilbert's client's claim in the negligence case. Nonetheless, the
investigative information sought by the plaintiffs is a material point of confluence, which
the plaintiffs' ;rgurr,zr,;s cverlcak. Thz caurt is persuad~dthat if a respofideni i;;l ;hc
underlying proceeding attempted to obtain the same information that the plaintiffs are
pursuing here, that information would be characterized as work product. Based on the
analysis noted above, whether the conclusion flows from rule 26(b)(3) or rule 26(c), the
court concludes that the common aspects of the three cases allow the proper invocation of
the work product rule here, even though the person asserting the privilege is not a party to
the cases at bar.
Next, the plaintiffs contend that even if the identities of Gilbert's sources are work
product, they are entitled to disclosure because they have substantial need of the
information and they cannot secure it by other means without undue hardship. As is
noted above, the plaintiffs bear the burden of establishing this limitation to the work
product privilege. For two reasons, they have not sustained their burden. First, even
when material falls outside of the protections of the work product privi!ege, a p ~ r t y
pursuing discovery is not entitled to information that tips off the mental impressions,
opinions or legal theories of an attorney. Under the analysis suggested in cases such as
First National Supermarkets, disclosure of an attorney's investigative contacts reveals
this very information. Secondly, as the same court pointed out, the information is likely
to be included as part of a broader inquiry, which Gilbert acknowledges is proper under
rule 26, that elicits information about the identity of persons who have discoverable
information. 112 F.R.D. at 153-54.
Finally, the plaintiffs argue that Gilbert has waived any protection under the work
product doctrine because of the extent of information he already provided in the affidavit.
Gilbert submitted the affidavit in order to satisfy the procedural requirements of rule
56(f), supporting the claimant's request that the court defer ruling on a motion for
summary judgment. In several cases, the Law Court has emphasized the need for a rule
56(Q affiant to provide a detailed account of information, based on personal knowledge,
that supports the motion for deferral. See, e.g., Bahre v. Liberty Group. Inc., 2000 M E
75, y¶J 12-14,750 A.2d 558,561-62. The information relevant to this case that Gilbert
included in his affidavit was material to his motion to stay judicial action on the summary
judgment motion and was fairly designed to comply with the rule. Under these
circ~imsta~:es,the col:r+ does not find that the extent of any disclosure in the affidavit
, - d - - -
Brnounted to a wa&er of the workproduct privilege here. See Laralt v.kIcClatchy, 116
F " n n c 2 n<c .
.I\. Y . 72 J ) 7 J J
Because the court concludes that the information sought by the plaintiffs is
protected as work product, the court need not and does not address the remaining bases
for Gilbert's objections to the discovery that the plaintiffs have pursued.
The entry shall be:
For the foregoing reasons, the motion of Charles E. Gilbert, 111, for a protective
order is granted. Charles E. Gilbert, 111, shall not be compelled to submit to discovery
requests to identify those previously undisclosed persons described in paragraphs 5 and 6
of his March 19, 2004, affidavit.
Dated: October 7, 2005
A TRUE COPY
EDWARD KELMENSON MD - PLAINTIFF SUPERIOR COURT
28 DEER HILL LANE PENOBSCOT, ss .
HAMPDEN ME 04444 Docket No BANSC-CV-2004-00084
Attorney for: EDWARD KELMENSON MD
MICHAEL DUDDY - RETAINED 04/29/2004
KELLY REMMEL & ZIMMERMAN DOCKET RECORD
53 EXCHANGE ST
PO BOX 597
PORTLAND ME 04112-0597
VS
INDIVIDUALS DESCRIBED - DEFENDANT
Attorney for: INDIVIDUALS DESCRIBED
ARTHUR GREIF - LIMITED
GILBERT & GREIF
82 COLUMBIA ST
PO SOX 2339
BANGOR ME 04402-2339
Filing Document: COMPLAINT Minor Case Type: OTHER NON-PERSONAL INJURY TORT
Filing Date: 04/29/2004
Docket Events:
04/29/2004 FILING DOCUMENT - COMPLAINT FILED ON 04/29/2004
!DEPEhT!3&2J'TS CF.PTIOMEn! Il\mIVIDTJALS DFSCRIRE'D IN PARAGRAPH 5 AND 6 OF THE MARCH 19. 2004
AFFIDAVIT OF ATTORNEY CHARLES E. GILBERT, 111.
04/29/2004 Party ( s ) : EDWARD KELMENSON MD
ATTORNEY - RETAINED ENTERED ON 04/29/2004
Plaintiff's Attorney: MICHAEL DUDDY
04/29/2004 Party(s) : EDWARD KELMENSON MD
MOTION - MOTION FOR LEAVE FILED ON 04/29/2004
PLAINTIFF'S EX PARTE MOTION FOR LEAVE TO GRANT EARLY DEPOSITION WITHOUT NOTICE WITH
INCORPORATED MEMORANDUM OF LAW (EXHIBIT A ATTACHED), TOGETHER WITH A PROPOSED ORDER
04/29/2004 Party (s): EDWARD KELMENSON MD
OTHER FILING - REQUEST FOR HEARING FILED ON 04/29/2004
BY PLAINTIFF. REQUEST FOR EXPEDITED HEARING. NON-TESTIMONIAL. GOOD FAITH ESTIMATE OF
TIME IS 1/4 HOUR.
04/30/2004 CASE STATUS - CASE FILE LOCATION ON 04/29/2004
PRESENTED TO JUSTICE MEAD FOR REVIEW.
04/30/2004 CASE STATUS - CASE FILE RETURNED ON 04/30/2004
BY JUSTICE HJELM, COURT'S RULING ISSUED.
04/30/2004 Party(s) : EDWARD KELMENSON MD
MOTION - MOTION FOR LEAVE OTHER DECISION ON 04/30/2004
JEFFREY L HJELM , JUSTICE
COURT'S RULING ON PLAINTIFF'S EX PARTE MOTION FOR LEAVE TO GRANT EARLY DEPOSITION WITHOUT
NOTICE WITH INCORPORATED MEMORANDUM OF LAW FILED 4/29/04; CLERK TO SCHEDULE CONFERENCE
W/ATTYS DUDDY AND GILBERT - MAY BE TELEPHONIC. IN MEANTIME, ON COURT'S OWN MOTION,
Page 1 of 7 Printed on: 01/12/2006