Douglas v. Windham Superior Court

• Decision Date: 14 June 1991
• Docket Number: No. 89-484,89-484
• Citation: 597 A.2d 774,157 Vt. 34
• Court: Vermont Supreme Court
• Parties: James H. DOUGLAS, Secretary of State v. WINDHAM SUPERIOR COURT and Barbara and Gerald Wilkinsen.

Page 774

597 A.2d 774

157 Vt. 34

James H. DOUGLAS, Secretary of State v. WINDHAM SUPERIOR COURT and Barbara and Gerald Wilkinsen.

No. 89-484.

Supreme Court of Vermont.

June 14, 1991.

John H. Chase, Office of Secretary of State, Montpelier, for petitioner.

Thomas Hayes, Miller, Cleary & Faignant, Ltd., Rutland, for Denise Snyder.

Otis & Brooks, P.C., Montpelier, for respondents Wilkinsens.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

DOOLEY, Justice.

The Vermont Secretary of State, as custodian of the records of the Vermont State Board of Nursing, petitions this Court for extraordinary relief from a trial court order directing him to produce certain documents in response to a pretrial discovery request. We decline to grant the relief requested and dismiss the petition.

Respondents here are the Windham Superior Court and the plaintiffs in a personal injury action against a registered nurse licensed by the Board, the hospital that employs her, and the hospital's administrator. The suit alleges, inter alia, that defendant nurse injected herself with drugs that should have been administered to plaintiff, Barbara Wilkinsen, and then injected water in the tainted syringes into Barbara Wilkinsen to conceal the diversion. The complaint also alleges that the hospital and its administrator hired the nurse without properly investigating her background and physical condition and that they failed to supervise her properly or monitor her physical condition during the term of her employment.

In the course of pretrial discovery, plaintiffs served requests to produce on petitioner, who is the statutory custodian of the Board's records, seeking the following:

1. Any and all complaints of professional misconduct directed against [the nurse].

2. The complete contents of any and all files maintained by or in the custody of any employee or agent of the Secretary of State concerning any complaint of professional misconduct against and/or any possible discipline of [the nurse], including the complete contents of any investigative file.

3. The complete minutes of any meeting of the Vermont State Board of Nursing at which any complaint of professional misconduct on the part of [the nurse] or any disciplinary action or possible disciplinary action against [the nurse] was discussed.

4. Any other records involving the licensure and/or discipline of [the nurse] as a registered nurse.

(Emphasis added.) Petitioner responded by supplying the nurse's application for licensure, the stipulation of settlement of the complaints against her, and the minutes of a Board meeting of June 12, 1989. He moved to quash the balance of the request on grounds that the material requested was privileged and not subject to discovery. The motion was accompanied by an affidavit of petitioner who stated he had personally reviewed the file of the nurse. He indicated that the file contained a report to the Board from one of his investigators transmitting the oral complaint and his preliminary investigation of it. He also indicated that the file contains a more complete report from the investigator, notes made by the executive director of the Board during the investigation, and notes of a meeting between the investigators and the nurse. The file also contains a stipulation of settlement between the nurse and the Board, a copy of which was provided to respondent. The stipulation contains an admission by the nurse that she diverted drugs for her personal use while employed by the hospital.

The affidavit of petitioner stated reasons why he refused to comply with the request to produce. As to the two reports of the investigator, he asserted that they name persons who provided information and that investigatory procedure "calls for the investigation stage to be confidential, and people providing information are routinely told that." He asserted that complaints often come from nurses and they would be deterred from complaining if they knew the information would be provided to private persons for use in litigation against their employer. He also asserted that the remaining complaints come from patients, who would also be deterred from complaining if details of their medical treatment were to be revealed. Overall, he believed that revealing investigative reports would "undercut the effectiveness of nursing regulation by revealing investigative techniques."

As to the notes of the Board's director, petitioner asserted that these also include the names of persons who provided information and show investigative techniques used. He also stated that these notes recorded settlement negotiations with the nurse and that disclosure of such negotiations would discourage settlements. He concluded that settlements are particularly important in drug abuse cases because cooperation is needed to allow for needed drug treatment.

The trial court considered the affidavit of petitioner, as well as the fact (apparently admitted during the hearing in the trial court) that the names of informants were disclosed to the nurse, and concluded that no applicable privilege existed in Vermont. The court denied the motion to quash. The present petition for extraordinary relief followed.

Petitioner asserts that three privileges ¹ give him the right to resist disclosure: (1) the investigatory files privilege; (2) the informant privilege as set forth in V.R.E. 509; and (3) the restriction on the admission of evidence of settlement negotiations as contained in V.R.E. 408. ² We agree with the trial court that the latter two contentions can be addressed quickly. Assuming that V.R.E. 509 applies outside the criminal context, this privilege is waived if the identity of the informant is disclosed by the holder, here the Board, to a person "who would have cause to resent the communication" from the informant to the government agency. We can think of no person who would greater resent the communication of the nurse's wrongdoing than the nurse. This privilege, if it existed, was waived.

The other asserted source of a privilege is actually a rule of relevancy. See V.R.E. 408. It does not create a privilege. At best, the rule creates an argument that the settlement negotiation information should not be disclosed because it is not relevant and is not "reasonably calculated to lead to the discovery of admissible evidence." See V.R.C.P. 26(b)(1). Petitioner did not make that argument.

Petitioner's strongest argument is the investigatory files privilege. The trial court concluded that no such privilege exists in Vermont. Petitioner recognizes we have never announced such a privilege, either by decision or in the Vermont Rules of Evidence, but urges that we follow the lead of other states in developing such a privilege as part of the common law. See Killington, Ltd. v. Lash, 153 Vt. 628, 635, 572 A.2d 1368, 1373 (1990) (recognizing qualified executive privilege); V.R.E. 501(a) ("This rule shall not be construed to prevent the development at common law of other privileges."). He argues that if such a privilege is recognized, it must necessarily cover the information plaintiffs seek.

Before we address this argument, we must stress that we are operating under a very limited scope of review in evaluating this kind of extraordinary relief petition. We held recently in Ley v. Dall, 150 Vt. 383, 386, 553 A.2d 562, 564 (1988), that the intervention of this Court to prevent discovery in the trial court was warranted only on a showing of usurpation of judicial power or clear abuse of discretion. In State v. Forte, 154 Vt. 46, 48, 572 A.2d 941, 942 (1990), we stated that this standard is met if petitioner shows an arbitrary abuse of power. Thus, in this Court, petitioner must show more than that the trial court was wrong or gave the wrong reason for its action. When we refer to abuse of discretion, we are saying that the trial court decision must be wrong as a matter of law. See id. We will not intervene if there is any ground for the trial court action, even if it is not the ground used by the trial court. ³

In applying this standard of review, it is also important to emphasize what is in issue. Petitioner does not complain about an inability to present his case to the trial court. All facts relevant to the questions before the trial court were presented in petitioner's affidavit and supporting material. No evidentiary hearing is needed here or in the trial court. Petitioner's complaint is that the court failed to apply the facts to the law and quash the subpoena. ⁴

We also stress the care with which we must approach any request to create a new privilege. The most important point of privilege doctrine was set forth by Chief Justice Burger in United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974):

Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.

Because of their interference with truthseeking, privileges are strongly disfavored. See, e.g., Cronin v. Strayer, 392 Mass. 525, 533, 467 N.E.2d 143, 148 (1984); Dixon v. Rutgers, 110 N.J. 432, 446, 541 A.2d 1046, 1053 (1988). Most courts have created a testimonial privilege only when the conditions meet the four-part test for recognition set forth in Dean Wigmore's treatise. See, e.g., American Civil Liberties Union v. Finch, 638 F.2d 1336, 1344 (5th Cir.1981) (privilege for governmental records). The four requirements are:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the...