Mengers-0'Brien v. Oyster Riv Sch Dis

Opinion

Mengers-0'Brien v. Oyster Riv Sch Dis CV-95-402-SD 12/14/98

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jennifer Mengers-O'Brien

v. Civil No. 95-402-SD

Oyster River Cooperative School District

O R D E R

Before the court are two motions which seek to quash

subpoenas duces tecum issued to Lincoln Soldati and Michael

Golding. The motions have been filed, respectively, by the

plaintiffs (document 96) and by the Attorney General of New

Hampshire (document 106). The defendant objects (documents 97,

107) .1

1. Background

This is an action for sexual harassment, student against

student, which occurred in an elementary school. As of this

writing, it is scheduled for final pretrial on December 21, 1998,

1Document 97 is defendant's objection to plaintiffs' motion, and document 107 is defendant's objection to the motion of the attorney general. with jury selection to follow on January 5, 1999. Discovery has

long since closed.

The subpoenaed parties are, respectively, the county

attorney for Strafford County (Lincoln Soldati) and a captain of

the Durham, New Hampshire, police department (Michael Golding).

The subpoenas seek to require these parties to attend depositions

to be held at the office of defendant's counsel on the morning of

December 15, 1998.

2. Discussion

As a result of the inability of an expert witness of

defendant to complete preparation for trial as it was previously

scheduled in July of 1998, this case was continued to its

currently assigned date to permit such expert to so prepare.

Additionally, the court granted defense requests for and held an

evidentiary hearing concerning the qualifications of an expert

for plaintiffs. No other concessions or discovery extensions

were requested or granted by the court.

As of July 6, 1998, defendant was aware that plaintiffs

intended to use videotaped testimony of plaintiffs taken in the

course of the investigation of a juvenile complaint in Strafford

County. See Order of July 6, 1998 (document 78) at 3, 4. In

2 fact, the court issued an order permitting defendant to inspect

such videotapes.

To this date, defendant has not requested of the court

permission to reopen discovery to depose additional witnesses.

Defendant suggests that the current subpoenas do not concern

discovery but are merely designed to aid defendant in properly

preparing its case for trial. This attempt at distinction the

court finds to border on the specious.

The attorney general's objection is grounded on the fact

that on June 3, 1994, state district court Judge Shaheen issued

an order prohibiting disclosure of the juvenile complaint lodged

in this litigation against a seventh-grade boy by "all potential

witnesses interviewed or contacted by the Durham police

department or the Strafford County Attorney's office and family

members and acquaintances of witnesses." Suggesting that this

order may have been breached by others does not, as defendant

suggests, relieve it from seeking from that court relief from

such order, which the court finds herewith to impliedly bind the

prospective deponents Soldati and Golding.

Rule 45(c)(3)(A)(iii), Fed. R. Civ. P., mandates the

quashing or modification of a subpoena which "requires disclosure

of privileged or other protective matter [where] no exception or

waiver applies . . . ." Federal courts should extend full faith

3 and credit to state court protective orders. Resolution Trust

Corp. v. Castellette, 156 F.R.D. 89 (D.N.J. 1994).

The court also finds that the "governmental" or

"deliberative process" privilege is here applicable, and that

doctrine forbids inquiries into the mental processes of

governmental decision makers. Gomez v. City of Nashua, N.H., 126

F.R.D. 432, 434 (D.N.H. 1989).2

The court, finding that the subpoenas equate with an attempt

to reopen discovery without advance permission of the court

(which, under the circumstances here, would not be granted), and

that they impinge upon a privilege possessed by the prospective

deponents, further finds that the motions to quash should be

granted.3

3. Conclusion

For the reasons outlined, the court grants the respective

motions of plaintiffs and the attorney general to quash the

2The court finds inapposite the well-crafted order of Magistrate Judge Muirhead in Jane Doe, et al v. Londonderry School Dist., Civ. No. 95-469-JD (Feb. 4, 1997).

3The court is aware of its authority to issue an order granting access to juvenile case records pursuant to RSA 169- B:35, II (& Supp. 1997). Indeed, such authority was previously exercised in behalf of the defendant back in July of 1998. As of this juncture, however, a request for the exercise of authority comes, as the court finds, much too late in the game to require consideration. 4 subpoenas herein. Mr. Soldati and Mr. Golding need not appear

for depositions at defendant's office on December 15, 1998.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

December 14, 1998

cc: Eleanor H. MacLellan, Esq. Bradley F. Kidder, Esq. Donald E. Gardner, Esq. Neals-Erik W. Delker, Esq.