Karen Cooper and Linda Dykeman v. YMCA of Greater Providence and Steven G. O’Donnell

2018 DNH 103

• Court: District Court, D. New Hampshire
• Decided: May 17, 2018
• Docket: 17-cv-601-JNL-AKJ
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

Karen Cooper and Linda Dykeman

v. Civil No. 17-cv-601-JNL-AKJ Opinion No. 2018 DNH 103

YMCA of Greater Providence and Steven G. O’Donnell

ORDER

The plaintiffs in this employment action, Karen Cooper and

Linda Dykeman, bring several claims against defendants YMCA of

Greater Providence and Steven O’Donnell, its CEO, alleging

retaliation and gender-based discrimination in violation of the

Rhode Island Fair Employment Practices Act (FEPA), R.I. Gen.

Laws § 28-5-7, Rhode Island’s Civil Rights Act of 1990, R.I.

Gen. Laws. § 42-112-1, and Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2 and § 2000e-3. They also bring a

state-law claim for defamation. This court has subject-matter

jurisdiction over the action under 28 U.S.C. §§ 1331 (federal

question) and 1367 (supplemental jurisdiction).

A third party to the action, the Rhode Island Department of

Labor and Training, Board of Review (“the Board”), moves to

quash a subpoena served by defendant O’Donnell seeking records

related to the plaintiffs’ proceedings before it. For the

reasons discussed herein, the court denies that motion. Background

Cooper acted as the YMCA’s Chief Development and Marketing

Officer, while Dykeman served as its Chief Financial Officer.

They allege, among other things, that O’Donnell harassed them

and treated them differently than male executives. After

seeking to resolve their complaints through a series of actions

not relevant to the motion at hand, the plaintiffs both resigned

in early 2017. After their resignations, they applied for and

received employment security benefits under the Rhode Island

Employment Security Act, R.I. Gen. Laws §§ 28-44-1 et seq. The

YMCA appealed that decision to the Board, which held an

evidentiary hearing before reversing the award of benefits.

On February 6, 2018, O’Donnell served a subpoena on the

Board seeking production of its files pertaining to the

plaintiffs’ claims for employment security benefits, including

the audio recording of the evidentiary hearing.1 See Fed. R.

Civ. P. 45. The Board moves to quash that subpoena, see Fed. R.

Civ. P. 45(d)(3), arguing that it is obligated by R.I. Gen. Laws

§ 28-42-38(c) and its own Rule 10 to maintain the records’

confidentiality.2

1 See Obj. to Mot. Ex. A (doc. no. 19-2). 2 Mem. in Supp. of Mot. to Quash (doc. no. 17-1).

2 Analysis

This motion is presumably brought3 pursuant to

Rule 45(d)(3)(A)(iii), which provides: “On timely motion, the

court . . . must quash or modify a subpoena that . . . requires

disclosure of privileged or other protected matter, if no

exception or waiver applies . . . .” To be considered timely, a

motion to quash generally must be filed within the time for

compliance set forth in the subpoena itself. See, e.g., 9

Moore’s Federal Practice § 45.50[1], 45–77 (3d ed.2009) (citing

cases). The Board filed its motion to quash the subpoena on

March 22, 2018, three weeks after the February 27 compliance

deadline and more than six weeks after it was served.

Even were the Board’s motion timely, however, it must still

be denied. The Board seeks to quash the subpoena because it

seeks information the Board holds confidential under Rhode

Island law. The relevant statute provides:

Information obtained, or information contained in other records of the department obtained from any individual pursuant to the administration of those chapters, shall be held confidential by the director and shall not be published or be open to public inspection in any manner revealing the individual's or employing unit's identity, but any claimant at a hearing provided for in those chapters shall be supplied with information from those records of the

3 The Board does not indicate as much -- indeed, does not invoke Rule 45 at all -- but the court extrapolates this from the nature of the Board’s objection to producing allegedly confidential materials.

3 extent necessary for the proper presentation of his or her claim.

R.I. Gen. Laws § 28-42-38(c). The Board argues that the

requirement that information it obtains “shall be held

confidential . . . and shall not be published or be open to

public inspections” prevents it from complying with the subpoena

where there is no current appeal pending before it.4

The Supreme Court of Rhode Island addressed this issue with

respect to an almost identically worded predecessor statute, the

Employment Security Act, Public Laws 1949, chap. 2175, sec.

11(5). Specifically, it considered “whether, by reason of the

language employed in said statute[ ] . . . the superior court is

deprived of its power to issue a subpoena duces tecum as a part

of its ordinary judicial process where the contents of the

documents subpoenaed are pertinent to a pending legal inquiry in

a controversy not directly coming within the provisions of such

statute[ ].” Powers ex rel. Dep't of Employment Sec. v.

Superior Court, 82 A.2d 885, 888 (R.I. 1951). Resolving that

question, the Court held that, “[i]n the absence of express

prohibition of disclosure” in that statute, “the court is not

denied the power in a proper case to exercise its discretion and

issue a subpoena duces tecum.” Id. at 889. And in doing so, it

4 Board’s Memo. (doc. no. 17-1) at 1.

4 differentiated use of such documents in legal proceedings from

disclosure “to those who are motivated simply by curiosity” or

where “the information was sought for purely commercial,

personal, or political purposes, or as a basis for creditors’

suits or similar proceedings.” Id. at 888.

Here, the statute in question does not expressly prohibit

disclosure in response to a subpoena, cf. Boudreau v. Holzer,

280 A.2d 88, 92 (R.I. 1971) (distinguishing Powers from

circumstance where statute directed that “[n]o subpoena shall be

issued by a court” to obtain the protected information), and the

party seeking information otherwise protected by § 28-42-38(c)

does so for use in a legal proceeding to which those whose

information is protected are a party. Accordingly, and

consistent with the reasoning of the Supreme Court of Rhode

Island in Powers, the court DENIES the Board’s motion to quash

the subpoena.5

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: May 17, 2018

5 Document no. 17. The court decides this issue on the papers submitted. No party requested a hearing.

5 cc: David S. Cass, Esq. Kevin P. Braga, Esq. Jilliam S. Folger-Hartwell, Esq. John D. Doran, Jr., Esq. Kathleen A. Nee, Esq.