The opinion
STATE OF MAINE +,wl
zA* a SUPERIOR COURT
f
PENOBSCOT, SS. Docket No. CV-05-93
?& '
DAVID FIACCO,
Plaintiff, )
>
..) '
~ . -/
& *"
ORDER I
I
Ai-rG 36 2dR5
!
j
VICTOR KRAFT, 1
Defendant. )
The Plaintiff has requested the Defendant's investigative files for 2002 and 2005
regarding certain work he performed at the request of an attorney on behalf of the
Sigma Alpha Epsilon (SAE) fraternity at the University of Maine. Defendant has
objected to the production of the files. A discovery dispute conference was held on June
29,2005, at wl-uch time the court invited the parties to submit memoranda. The parties
have d x e sc afid thcn c ~ u r :rides as fo!!~;.v's.
This civil action results from a troubling and unpleasant set of circumstances. The
facts are well developed in the parties' memoranda and need not be repeated in f d .
Briefly, the Plaintiff is a University of Maine employee whose employment included
presidng over a disciplinary board. The board was investigating allegations against the
SAE fraternity. The fraternity retained N. Laurence Willey, Esq., to defend the
allegations before the board. Attorney Willey secured the services of the Defendant, a
licensed private investigator, to undertake an investigation of the circumstances of the
complaint(s).
The parties agree that the Defendant learned during the course of h s
investigation that the Plainbff had been previously convicted of Driving W e
Intoxicated and had a protection order issued against h m . Some unknown person
transmitted this information to University of Maine Officials and news media in the
form of an unsigned memo which asks whether the Plaintiff was the "best qualihed
candidate" for the Office of Judicial Affairs. Defendant denies that he was the person
who prepared or disseminated the memo.
With no overt proof that Defendant prepared or disseminated the memo, the
Plainbff concedes in h s July 18,2005, memo to the court that he cannot possibly prove
his case against the Defendant (or others) unless he is allowed access to Defendant's files
or information regarding the person(s) to whom he conveyed the information.
Defendant asserts that the facts as alleged in the Complaint, even taken as true, do not
establish any viable cause of action in tort.
Although the court does not reach the issue of the viability of the Complaint in
this discovery context, it should be noted that no party asserts that the information is
untrue. Likewise, neither party asserts that the Plaintiff was threatened with disclosure
of the information unless he undertook some course of action. The perpetrator of this
rather nasty maneuver simply transmitted the material in a very public way with a
statement which questioned the Plaintiff's suitability for his position in the Office of
Judicial Affairs.
The Defendant's activities in t h ~ matter
s were occasioned by his service to
attorney Willey who, in turn, was representing the fraternity in conjunction with a
disciplinary proceeding before a judicial board. As such, the court must conclude that
the Defendant's investigative files are privileged under the attorney-client privilege and
the work product privilege.
The Plainbff argues that facts regarding h s personal circumstances have no
relevance to the disciplinary proceeding and fall outside the protection of the privileges.
The point is well taken, but the fact remains that the information was obtained -
misguidedly perhaps - as part and parcel of an investigation performed at the behest of
an attorney in conjunction with legal representation. As such, it is within the scope of
the privileges.
If the information was part of a fraudulent scheme or crime, clearly the
privileges would offer no protection. However, the simple public dissemination of
public information cannot constitute fraudulent or criminal conduct even if it is done
with the darkest of motives.
In no way does the court condone the conduct of the author and/or
disseminator of the memo. It was a cowardly and reprehensible act of ill will for w h c h
the perpetrator now h d e s behind the veil of privilege. It was a shameful course of
action whch is beneath contempt.
Accordingly the court somewhat reluctantly orders that the contents of the
Defendant's investigative files are exempt from disclosure pursuant to the privileges
cites above. So Ordered.
The Clerk may incorporate this Order upon the docket by reference.
n
Dated: August 25, 2005
SUPERIOR COURT
LU.,..a W I I c L ~ LLLC urparImenr or t h e Attorney General e n t e r s a n appearanc
An a p p e a r a n c e h a s n o t y e t been e n t e r e d f o r t h e D e f e n d a n t . However,
t o a v o i d a p r o s p e c t i v e c o n f i l i c t , I r e c u s e from t h i s c a s e , which s h a l l
be a s s i g n e d t o a n o t h e r J u s t i c e . (Hjelm, J . ) Copy f o r w a r d e d t o P l a i n t i f f ,
P r o Se.