The opinion of the court was delivered by: Landya B. McCafferty United States Magistrate Judge
On January 18, 2013, the court heard oral argument on the motion to compel (doc. no. 22) filed by plaintiff, Charles E. Walker, Administrator of the Estate of Michele M. Walker. Attorney Leslie Johnson appeared on behalf of plaintiff; Attorneys Mary Ann Dempsey and Lisa English appeared for defendants, N.H. Administrative Office of the Courts and N.H. Circuit Court, 2d Circuit, District Division-Littleton (referred to collectively as defendants or "the AOC"). The court issued its ruling on the motion orally from the bench. In this order, the court summarizes those rulings.
By agreement of the parties, the court divided the discovery dispute into four topics or categories. With respect to those four categories, the court issued the following rulings:
1. Howe material (Interrogatories 1, 2, 4, 22 & 26)
This dispute concerns whether plaintiff is entitled to access the complete file of the outside investigator, Christine Howe, whom the AOC retained to conduct a formal investigation of Michele M. Walker's sexual harassment complaint. The AOC has turned over the bulk of Howe's file. The dispute concerns Howe's notes and her "draft" final report, as well as records of any communications between AOC and Howe (including communications between Howe and Attorney Julie A. Moore, counsel for the AOC). The AOC claims the evidence is protected by the work-product doctrine. Plaintiff claims that the material it seeks is discoverable because the quality of the investigation is a critical issue in her case, and the investigation was not conducted "in anticipation of litigation."
For the reasons stated on the record, the court will review the material in camera before ruling on this portion of plaintiff's motion. Accordingly, defendants shall file with the court for in camera review, on or before January 28, 2013, investigator Howe's entire file (excluding any material that has already been provided to plaintiff). This shall include any record(s) of communication from defendants (including Attorney Moore) to and from Howe. Defendants shall also file a privilege log which complies with Fed. R. Civ. P. 26(b)(5), and provide a copy of that log to plaintiff. The court will review the material in camera to determine the extent of plaintiff's entitlement to the material. To assist the court in its review of these documents, defendants have agreed to file, in addition to the contents of the Howe file and log, a copy of the AOC's sexual harassment policy.
2. Current employees/witnesses represented by the Attorney General's Office (Interrogatories 2 & 5)
This dispute concerns whether plaintiff may contact, on an ex parte basis, current employees of the AOC, who are not parties to this litigation but who are represented by the Attorney General. For the reasons stated on the record, and with the concurrence of counsel for both plaintiff and defendants, the court issued a ruling permitting the contact but with limitations.
Defendants shall provide plaintiff with a list of current and former employees of defendants who, between August 1, 2008, and August 1, 2009, worked with witnesses Gilman and Towle. The list shall not include managerial/supervisory employees. The list shall include addresses and phone numbers of the employees. Plaintiff proposed, and the court orders, that the list be designated "for attorneys' eyes only." Plaintiff's counsel agreed not to share the contact information with anyone else, including her client. At the conclusion of this case, plaintiff's counsel shall return the list to defendants' counsel.
With respect to all current employees on the list, plaintiff's counsel shall be permitted to contact them on an ex parte basis and without prior notice to Attorney Dempsey so long as plaintiff's counsel shall:
(1) identify herself to each person, including the fact of the litigation and that she represents the plaintiff in the litigation;
(2) inform each person that s/he has the right to decline to be interviewed and the right to request that counsel from the Attorney General's Office be present during the interview;
(3) refrain from asking questions that would be likely to reveal information protected by the attorney-client ...