Gaumond v. Trinity Repertory Co.

• Decision Date: 14 November 2006
• Docket Number: No. 2005-258-M.P.,2005-258-M.P.
• Citation: 909 A.2d 512
• Parties: Shaun GAUMOND v. TRINITY REPERTORY COMPANY.
• Court: Rhode Island Supreme Court

Page 512

909 A.2d 512

Shaun GAUMOND v. TRINITY REPERTORY COMPANY.

No. 2005-258-M.P.

Supreme Court of Rhode Island.

November 14, 2006.

Glenn R. Friedemann, Esq., Providence, for Plaintiff.

Jason C. Preciphs, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., and GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice GOLDBERG, for the Court.

"Facts are stubborn things, * * * and whatever may be our wishes, our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence."¹ The plaintiff, Shaun Gaumond (Gaumond or plaintiff), is before the Supreme Court pursuant to a writ of certiorari, seeking review of a Superior Court order denying his Motion to Quash three subpoenas served by the defendant, Trinity Repertory Company (Trinity or defendant), seeking production of an injury report that he contends is privileged. According to plaintiff, the records sought by Trinity are "confidential educational records" not subject to disclosure under the Individuals with Disabilities Educational Act, 20 U.S.C. § 1400 (IDEA),² and the Rhode Island Educational Records Bill of Rights (RIERBOR), G.L.1956 chapter 71 of title 16,³ in concert with the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.⁴ The plaintiff asserts that the subject records are protected by a "school-disabled student privilege[.]" For the reasons stated herein, we affirm the order of the Superior Court.

Facts and Travel

The events leading up to this controversy began on September 24, 2002, when Gaumond attended a production of "The Skin of Our Teeth"⁵ at Trinity as part of a field trip sponsored by Central Falls High School. According to plaintiff, after an intermission, he was injured when he fell while descending the theater stairs because, he contends, the stairs and adjacent railing were unstable and in need of repair. On July 22, 2003, plaintiff filed suit against Trinity, seeking damages for injuries allegedly suffered as a result of his fall.

The dispute before this Court concerns an injury report that school employees prepared soon after the incident at Trinity, which report plaintiff argues is a confidential educational record, and thus privileged. The record discloses that school officials altered the original injury report at plaintiff's request to redact "misleading" and "inaccurate" information. The plaintiff maintains that as a student with disabilities, he had the right under the IDEA to request that inaccurate information in confidential educational records be expunged or redacted. See 20 U.S.C §§ 1412(a)(8);⁶ 1417(c);⁷ 34 C.F.R. § 300.567(a)(2006).⁸

Trinity first learned about the injury report in Gaumond's answers to interrogatories that referred to "a school nurse's report about the accident by the Central Falls School District[.]" Thereafter, plaintiff produced a version of the injury report during the deposition of Trinity's general manager, Christopher Jennings (Jennings deposition). The plaintiff asked that the document be sealed, but with the understanding that Trinity would have access to it "in the future to prepare any defense in this case."

The version of the injury report produced at the Jennings deposition was a brief description of the incident that states: "Going down stairs, held onto railing which gave way, at Trinity Theater." According to plaintiff's counsel, a Central Falls High School nurse had prepared the report. Counsel did not indicate that the report previously had been altered.

The first inkling that the report had been amended surfaced on May 10, 2005, during the deposition of Donald Blais (Blais), the Central Falls High School teacher who supervised the field trip to Trinity. Blais testified that he had authored an injury report after speaking with several of the other school employees who attended the field trip. According to Blais, his report differed markedly from the report that plaintiff had produced at the Jennings deposition and asked to be sealed.⁹ Trinity filed a request for production of all versions of the injury report. Additionally, Trinity issued subpoenas, the goal of which was to uncover information about the changes made to the original report.

The plaintiff moved to quash the subpoenas and requested a protective order, alleging that the documents sought were confidential records of a student who falls under the protections of the IDEA and FERPA and were privileged. The Superior Court hearing justice denied the motion to quash and ordered the production of all versions of the injury report. However, he issued a protective order sealing from public disclosure "[a]ny and all documents produced pursuant to this Order." The plaintiff sought review in this Court by way of petition for writ of certiorari.

Issues Presented

Before this Court, plaintiff argues that the unamended versions of the injury report are protected from discovery by virtue of a "school-disabled student privilege."¹⁰ He asserts that based on the IDEA, in conjunction with FERPA, confidential educational records are clothed with this privilege. The plaintiff also contends that he cannot be compelled to waive this privilege with respect to any previous inaccurate and misleading educational records and that the hearing justice erred by ordering their production.

Trinity disputes the availability of a "school-disabled student privilege." The defendant also argues that, even if the Court recognized such a privilege, plaintiff waived his right to assert the privilege when he produced an amended (and presumably more favorable to him) version during the Jennings deposition. According to defendant, because plaintiff placed the injury report in issue, he may not seek the safe harbor of privilege with respect to an unfavorable version.

Trinity also points to the affirmative representations Gaumond's counsel made that it would have access to the injury report to prepare for trial. Trinity asserts that Gaumond's actions justify invocation of the doctrine of judicial estoppel.

Standard of Review

This Court limits its review on certiorari to "examining the record to determine if an error of law has been committed." City of Providence v. S & J 351, Inc., 693 A.2d 665, 667 (R.I.1997) (quoting Matter of Falstaff Brewing Corp. Re: Narragansett Brewery Fire, 637 A.2d 1047, 1049 (R.I.1994)). Our review is limited to an "examination of the record to determine whether any competent evidence supports the decision and whether the decision maker made any errors of law" or whether the "decision was `patently arbitrary, discriminatory, or unfair.'" Asadoorian v. Warwick School Committee, 691 A.2d 573, 577 (R.I.1997) (quoting D'Ambra v. North Providence School Committee, 601 A.2d 1370, 1374 (R.I.1992)).

Privilege

"Facts do not cease to exist because they are ignored."¹¹ Before this Court, plaintiff argues that the hearing justice ordered "the forced and nonconsensual waiver of the privilege a disabled student has in preserving the confidentiality of his education records[.]" The plaintiff asks us to recognize a heretofore unknown privilege, the "school-disabled student privilege." According to plaintiff, this privilege is similar to the well recognized doctor-patient and attorney-client privileges. Although neither FERPA nor the IDEA specifically mentions a privilege for confidential educational records, plaintiff alleges that other courts have done so in situations similar to the case at bar. We disagree.

This Court consistently has declared "that privileges, in general, are not favored in the law and therefore should be strictly construed." Moretti v. Lowe, 592 A.2d 855, 857 (R.I.1991) (citing Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644, 647 (Tex.1985)).¹² Mindful that the primary function of the judicial process indisputably is truth-seeking, we have "declared that privileges do not aid the quest for truth, the core function of the adversary process[.]" Pastore v. Samson, 900 A.2d 1067, 1086 (R.I.2006).¹³ "Privileges, by their nature," create limitations on the legal process that must be viewed with skepticism because they attempt to "`shut out the light' on `the ascertainment of the truth.'" Id. at 1078 (quoting State v. Almonte, 644 A.2d 295, 298 (R.I.1994)).

When a party who is resisting discovery of so-called confidential or protected information asserts a privilege, "[t]he burden of establishing entitlement to nondisclosure rests on the party resisting discovery." Moretti, 592 A.2d at 857. This Court has refused to recognize new privileges, even when a "statute manifests and effectuates an important legislative policy favoring confidentiality and generally prohibits disclosure of information[.]" Mallette v. Children's Friend and Service, 661 A.2d 74, 76 (R.I.1995) (holding that the statute establishing the confidentiality of Department of Children, Youth and Families' records did not create a testimonial privilege).

Furthermore, we have declared that a statute providing for privileges "must not be used as a shield to obstruct proper discovery of relevant information[.]" Moretti, 592 A.2d at 858 (emphasis added).¹⁴ A party may not hide behind confidentiality to avoid disclosure of unfavorable evidence. See State v. Guido, 698 A.2d 729, 734 (R.I.1997) (holding that a statute providing for confidentiality of medical records may not be used to shield relevant and material evidence from legal process); see also In re Doe, 717 A.2d 1129, 1135 (R.I.1998) (state prosecutor may not assert grand jury secrecy to avoid compliance with procedural protections for privileged medical records). At the same time, however, appropriate statutorily defined privileges do not cease to exist merely because documents are the subject of a subpoena; "[o]n the contrary, the privilege continues to exist, and the documents that are privileged still cannot be disclosed" except by strict compliance "with the requirements of any compulsory legal process...