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Patricia Hughes v. Southern New Hampshire Services

October 25, 2012

PATRICIA HUGHES
v.
SOUTHERN NEW HAMPSHIRE SERVICES, INC.



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

In a case that has been removed from the New Hampshire Superior Court and over which this court has federal-question jurisdiction, see 28 U.S.C. § 1331, Patricia Hughes has sued her former employer, Southern New Hampshire Services, Inc. ("SNHS"). She states claims under both federal and state law, generally asserting that she was discriminated against on account of her type-one diabetes. Before the court is SNHS's motion to compel Hughes to produce all of her communications with the American Diabetes Association ("ADA"). Hughes objects. For the reasons that follow, SNHS's motion to compel is denied.

Background

In her complaint, Hughes alleges that she has type-one diabetes, and that her condition requires her to eat certain kinds of food, on a particular schedule, to avoid various symptoms of her diabetes. The basic thrust of her claims is that SNHS, as her employer, failed to provide her with a reasonable accommodation for her condition and terminated her employment as a result of it.

At her deposition, Hughes indicated that before she filed a complaint with the New Hampshire Commission for Human Rights ("HRC"), she had contacted the ADA. Specifically, she said that she exchanged e-mails with the ADA's Kathleen Gordon regarding "diabetics and the law" and "her rights as a diabetic." Def.'s Reply, Ex. 1 (doc. no. 27-1), at 2. She further testified that Attorney Gordon proofread a four-page narrative, which, presumably, was a part of either an HRC complaint or a document prepared for submission to the Equal Employment Opportunity Commission ("EEOC"). In a subsequent affidavit, Hughes testified that: (1) "Attorney Katherine Gordon*fn1 . . . provided . . . her mental impressions and opinions on how [she] should draft the Charge of Discrimination to be filed with the EEOC," Pl.'s Obj., Ex. 3 (doc. no. 24-4) ¶ 2; (2) she was told that all of her communications with Attorney Gordon would be confidential, see id. ¶ 3; and (3) she has not waived any privilege that may attach to her communications with Attorney Gordon, see id. ¶ 7.

Hughes initiated her contact with the ADA in response to a website that explains, among other things:

If you are being discriminated against because of your diabetes at work . . . you can request assistance from the American Diabetes Association. . . . . . . . A representative from the ADA's Center for Information and Community Support will send you a packet of information and a form to request help from one of the ADA's legal advocates. . . . .

When you send in a form requesting help from a legal advocate, you can expect to receive information and assistance from a lawyer specializing in diabetes discrimination issues. Although all our legal advocates are licensed attorneys, they are not able to represent you and speaking with a legal advocate will not create a client-attorney relationship.

The legal advocate you speak with will provide you with information about your legal rights, provide strategies for exercising your rights, give you tools to use to advocate for yourself and negotiate a resolution of your problem, and where necessary and appropriate, guide you through the applicable legal process. . . . . . . .

All information you provide to us, including the fact that you contacted us about a discrimination matter, is treated confidentially and not shared outside of legal advocacy staff unless you give us explicit permission to talk to other about your case.

Def.'s Mot. to Compel, Ex. 1 (doc. no. 22-1), at 1.

After Hughes gave deposition testimony about her contact with Attorney Gordon, who was acting in her capacity as an ADA legal advocate, SNHS asked Hughes to produce her communications with the ADA. She has declined to do so, asserting attorney-client privilege.

SNHS now moves for an order compelling Hughes "to produce all [of her] communications with the ADA," Def.'s Mot. to Compel (doc. no. 22), at 4, which necessarily includes her communications with her ADA legal advocate. But, SNHS has not complied with the local rules of this district, under which it was obligated to "include, in [its] motion itself or in an attached memorandum, a verbatim recitation of each interrogatory, request, answer, ...


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