Langley v. Providence College, C.A. No. PC 2005-5702 (R.I. Super 7/1/2009)

• Decision Date: 01 July 2009
• Docket Number: C.A. No. PC 2005-5702.
• Parties: JOHN E. LANGLEY, JR. as administrator of the Estate of JOHN D. LANGLEY v. PROVIDENCE COLLEGE.
• Court: Rhode Island Superior Court

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JOHN E. LANGLEY, JR. as administrator of the Estate of JOHN D. LANGLEY v. PROVIDENCE COLLEGE.

C.A. No. PC 2005-5702.

Superior Court of Rhode Island, Providence, Sc.

July 1, 2009.

DECISION

HURST, J.

This case is before the Court for decision in the continued proceedings on Plaintiffs Motion to Compel Production of Documents Withheld Under Claim of Privilege. At issue are two witness statements, in the form of written memoranda; six purported transcriptions of recorded witness interviews; and the content of three micro-cassette audio recordings of the witness interviews—all of which have been reviewed by the Court, in camera. Also at issue is the pattern of concealment, evasion, and obstruction evidenced by Providence College's discovery responses and representations made to the courts of this State.

I

Facts and Travel

A The Events Leading to the Court's In Camera Review of Providence College's Written Witness Statements and Purported Interview Transcriptions

John E. Langley, Jr., as administrator of the Estate of John D. Langley (Plaintiff) brings this action. On December 13, 2002, the Plaintiffs decedent, John D. Langley (Langley or John Langley), a student at Providence College, (Providence College or College) gained access to his dormitory's attic and fell from the dormitory roof. Providence College security officers secured the attic and kept the media from the campus. The Providence Police Department responded to the incident, treating the dormitory and immediate area as a potential crime scene. In the days following the incident, an outstanding issue was the identity of one of the two other students who were with Langley during the evening he fell. Similarly at issue were questions concerning what, if anything, Providence College had known about students' use of the attic or other unauthorized areas in the past and, if so, what steps it had taken to prevent them from doing so in the future.

At the time of the incident, Reverend Stuart McPhail, O.P. (McPhail or Rev. McPhail) was the Vice President of Student Services. College Vice President and General Counsel Marifrances McGinn (Attorney McGinn or McGinn) was the College's risk manager. According to his affidavit, Rev. McPhail contacted McGinn, advising her that he believed Langley's family would attempt to hold Providence College responsible for Langley's death and would sue. (Aff. of Rev. Stuart McPhail, O.P., November 6, 2007.) The stakes were high: Providence College's responsibility, civil or criminal, for the wrongful death of one of its students would have repercussions beyond mere economic damages. Thereafter, in the days immediately following the incident, Providence College conducted an investigation concerning the circumstances surrounding John Langley's death—thus committing the witnesses' observations and accounts of pertinent events to the College's institutional memory.

As part of the investigation, McGinn and Associate General Counsel Gail Dyer (Attorney Dyer or Dyer) interviewed a number of witnesses, including students, parents, College officials, and College employees. Although the total number of interviews ultimately conducted and the identity of the interviewees remain unknown, McGinn and Dyer made notes and audio-cassette recordings memorializing discussions among themselves, and at least three other College officials and several lower echelon College employees. Providence College officials whose interviews were recorded included Vice President of the College and Dean of Residence Life, Reverend Kenneth Sicard (Sicard, Fr. Sicard, or Reverend Kenneth Sicard); Assistant Dean of Residence Life, Kevin Hillery (Hillery); and St. Joseph Hall Director and member of the College's Residence Life Central staff, Ernest McNair (McNair). In addition, Vice-President and Chief Financial Officer Michael V. Frazier (Frazier) prepared a one page written account of the events, entitled Observations of St. Joseph's Hall, dated December 13, 2002 at 9:39 a.m., that was directed to McGinn and McPhail. Similarly, Kevin Hillery prepared a one page memorandum, dated December 15, 2002, that was directed to Fr. Sicard. So, too, Ernest McNair provided a one page letter bearing a date of December 13, 2002. Other employees known to be interviewed included campus security officers David Marshall (Marshall), David Petit (Petit), John Dunbar (Dunbar), and Joseph McDonald (McDonald); College project manager Carl Russo (Russo); St. Joseph Hall Residential Assistant, Edmund St John (St. John); and physical plant employee-locksmith, Martin Toupin (Toupin). Of these seven lower echelon employees, the interviews of Marshall, Petit, St. John and Toupin are known to have been recorded.

The first audio-cassette recording was transcribed by a Providence College legal secretary, Mary Caprio, within three days of the initial interview. She transcribed others several weeks later. Regardless, all of the transcriptions were maintained, electronically, in the College's computer system. In addition, as the interviews were transcribed, hard copies of the transcriptions were printed, reviewed by Attorney Dyer, and thereafter maintained in a paper file kept by her. See Letters of Attorney Kristie M. Passalacqua, dated May 22, 2008 and June 11, 2008.

Of the written statements, those of Kevin Hillery and Michael Frazier are the subject of the instant motion. Likewise, the recorded statements of Ernest McNair, Edmund St. John, Kevin Hillery, David Petit, David Marshall, Martin Toupin, and Reverend Kenneth Sicard are in contest.

The written accounts and recorded interviews contained detailed discussions of the facts, circumstances, and events surrounding John Langley's death, and the observations that the Providence College officials and staff members made at the time. Included was information highly pertinent to the questions of when the College learned students were accessing the attic and what Providence College had done to prevent them from doing so. All of the written accounts and recorded interviews contained an exchange of factual information—much of it highly damaging and cross-substantiating.

In February 2003, Private Investigator Richard H. DiNatale went to the College in an attempt to conduct interviews and take photographs on behalf of the Plaintiff. Mr. DiNatale was advised by Attorney McGinn that the College campus was private property, and she informed him that she would call the Providence Police if he did not leave the campus immediately. Attorney McGinn then personally escorted Mr. DiNatale off the property, thus curtailing the Plaintiff's own investigation into the facts and circumstances surrounding John Langley's death. College staff members were informed of the incident, and they were told to refrain from discussing or speculating about the anticipated litigation amongst themselves. According to Providence College's defense counsel, staff members were not instructed to refrain from speaking with the Plaintiff or his representatives. See Defendant Providence College's Reply Memorandum in Opposition to Plaintiff's Motion to Compel Production of Documents Withheld Under Claim of Privilege, 4, November 7, 2007 (Def.'s Mem. in Opp'n).

The Plaintiff filed suit in late 2005, and the instant litigation ensued. The factual details about how Langley gained access to the dormitory attic and was able to climb out onto the roof became of critical importance in the case, as did questions about when Providence College learned its students were using the attic as an unauthorized retreat and what it had done to prevent them from doing so. Not surprisingly, much of the Plaintiff's pre-trial discovery requests focused on the identity of and knowledge possessed by the College's many officials, staff members, students, and former-students.

Only after two years of litigation and multiple hearings on discovery questions, did it come to light that the audio-cassette recordings and memoranda, previously undisclosed to the Plaintiff, were in existence. Providence College resisted producing these and other materials, asserting various objections and privileges with respect to them. The College produced a privilege log, claiming that the documents identified in it "were specifically and solely generated in anticipation of litigation at the direction of counsel and for no other purpose" (Answer to Interrog., August 7, 2007, privilege log) and, further, that the documents would be withheld pursuant to the attorney-client communications and work-product privileges. In addition to the two written memoranda directly at issue herein, included among the documents over which Providence College asserted its privilege claims was the one-page statement of Ernest McNair, dated December 13, 2002. Providence College also asserted that the recorded interview of Reverend Kenneth Sicard, O.P., conducted by Attorney Dyer, and Kevin Hillery's December 15, 2002 memorandum to Fr. Sicard were protected by the priest-penitent privilege.

Thereafter, the Plaintiff filed a Motion to Compel Production of Documents Withheld Under Claim of Privilege. During the course of several months and at least two hearings on the motion, Providence College withdrew some of its objections. The privilege log was revised at least once, in part because, according to Providence College, Attorney Dyer's notes of her interviews of David Marshall, Joseph McDonald, and John Dunbar had only recently been discovered. See Letter of Attorney Kristie M. Passalacqua, dated January 2, 2008. Ultimately, still in contest were the two witness statements that had been reduced to written memoranda and the audio-cassette recordings—the latter of which had been transcribed by Providence College, purportedly accurately—for a total of seven documents.¹

The motion was argued on January 10, 2008, at which time Providence College's attorneys pressed both its attorney-client communications and attorney work-product privileges. In the...