Worthen v. Gaulin, No. S1546-03 CnC (Norton, J., J une 6, 2005)

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STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. S1546-03 CnC

SANDRA WORTHEN

v.

RANDALL GAULIN; NORTHEAST HOSPITALITY GROUP, INC.; GABRIEL G. HANDY; and JENNIFER A. HANDY

ENTRY This case concerns injuries that the plaintiff, Sa ndra Worthen, incurred as a result of harassing behavior of an occupant of the hotel w here she worked. Worthen has sued her employer, the hotel general manager, and the ho tel owner as a result of these injuries, claiming violations of the Vermont Fair Employment Practices Act, 21 V.S.A. §§ 495– 496, and the Vermont Occupational Safety and Health Act, 21 V.S.A. §§ 221–232, as well as wrongful discharge, 1 negligent supervision, and intentional infliction of emotional
distress.

Northeast Hospitality has issued a subpoena duces tecum to the Vermont Department of Social Services Child Welfare Divisio n/Economic Services in order to
obtain documents related to services that Worthen o btained after her employment with

1 Worthen pleads this claim as “constructive dischar ge.” Because there is no such cause of action, the court assumes she intended to plead “wrongful discharge,” which is consistent with the facts set forth in her complaint.the hotel. The Department of Child and Family Serv ices (DCF) and Worthen have filed

separate motions to quash. DCF argues, first, that there is no such entity identified in Northeast Hospitality’s subpoena, and second, that it is prohibited under Vermont law
and federal

regulations from providing the information that Nor theast Hospitality seeks. Worthen argues that the information that Northeast Hospital ity seeks is irrelevant.

As an initial matter, the court assumes that North east Hospitality intends to change its subpoena to specify the appropriate agency. Acc ording to DCF, the appropriate agency is presumably the Family Services Division o f DCF. The court therefore considers the subpoena to identify “the Department of Child and Family Services/Family Services Division,” rather than “the Department of Social Services Child Welfare
Division/Economic Services.”

Turning to DCF’s argument that Vermont law prohibi ts it from releasing the information sought in the subpoena, DCF cites 33 V. S.A. § 111 for authority that it cannot release information about individuals applyi ng for or receiving income assistance. Section 111 provides that “[t]he names of or inform ation pertaining to applicants for or recipients of assistance or benefits . . . shall no t be disclosed to anyone, except for the purposes directly connected with the administration of the department or when required by law.” The Vermont Supreme Court has held that th is provision does not create an evidentiary privilege. In re F.E.F. , 156 Vt. 503, 514 (1991). “The general confidentia lity statute gives way when disclosure is provided by la w, which covers mandated disclosure for use in a court proceeding.” Even were the court to assume that all the information that Northeast Hospitality seeks is covered under the § 111 confidentiality provision, it would still be subject to discovery. Just because the inf ormation is confidential does not mean it is privileged from discovery.

DCF also argues, however, that federal regulations governing the state administration of federal funds also prohibit it fr om releasing the information sought. Specifically, these regulations require that state agencies “restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administra-tion of [the state plan for administerin g federal aid].” 42 C.F.R. § 431.301 (2004). State agencies “must have criteria that gov ern the types of information about applicants and recipients that are safeguarded.” Id . § 431.305(a). Such criteria must3

include, among other information, names and address es, medical services provided, social and economic conditions or circumstances, ag ency evaluation of personal information, medical data, and information received for verifying income. Id . § 431.305(b)(1)–(6). “If a court issues a subpoena fo r a case record or for any agency representative to testify concerning an applicant o r recipient, the agency must inform the court of the applicable statutory provisions, polic ies, and regulations restricting disclosure
of information.” Id . § 431.306(f).

These regulations merely indicate that the informa tion sought is confidential. They do not expressly create an evidentiary privilege. T he court will not infer a privilege unless an evidentiary statute or rule strongly impl ies the privilege. See F.E.F. , 156 Vt. at 514 (“Because evidentiary privileges directly under cut the truth-seeking function of court proceedings, we will not construe a confidentiality statute as creating an evidentiary privilege unless the intent to do so is clear.”); s ee also In re Grand Jury Subpoena Duces

Tecum , 2001 WL 896479, *4 (W.D. Va. 2001) (holding that provisions of 42 C.F.R. §§ 431.300–431.307 do not create evidentiary privilege s and “address only the appropriate agency response” to request for information in lega l proceeding); F.E.F. , 156 Vt. at 512 n.4 (holding that similar federal regulations, 45 C .F.R. § 1340.14(i), do not establish evidentiary privileges).

Accordingly, DCF has not demonstrated that the inf ormation which Northeast Hospitality seeks in its subpoena is privileged, an d therefore, the court will not quash the subpoena on the ground that it seeks confidential i nformation. 2 If DCF so desires, however, the court will review the documents in cam era and entertain a motion for a protective order in order to protect the confidenti ality of certain information with the documents pursuant to V.R.C.P. 26(c).

2 Although not raised by the parties, the court note s that the information may fall under a common law “required reports” or “confidential repo rts” privilege covering some government documents with information required from citizens. See In re Grand Jury Subpoena Duces Tecum , 2001 WL 896479 at *4. Such a privilege fails here , though. First, Vermont law has not adopted it. The closest privilege adopted in Vermon t is the government investigation privilege, V.R.E. 509; Douglas v. Windham Sup. Ct. , 157 Vt. 34, 40–41 (1991), which is not applicable

. Second, even if the court were to adopt a common la w “required reports” privilege, the privilege generally requires a statutory instruction that inf ormation in the “required report” be privileged and inadmissible in court. 1 Michael H. Graham, Han dbook of Federal Evidence § 502.1 (2001). As discussed above, no such express statutory requi rement exists here.4

With respect to the relevance of the information, “‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or le ss probable than it would be without
the evidence.” V.R.E. 401. Relevant evidence at the discovery stage is not limited to
evidence related to the issues formulated in the ca se. Rather, “[p]arties may obtain discovery regarding any matter, not privileged, whi ch is relevant to the subject matter involved in the pending action.” V.R.C.P. 26(b)(1); see also 9A C. Wright & A. Miller, Federal Practice and Procedure § 2459, at 42–45 (19 95) (“The scope of production under a subpoena that is incorporated by reference in Rul e 45 to Rule 26(b) is exceedingly broad.”).

Hence, Northeast Hospitality need only offer some reason as to why the information it seeks from DCF is relevant to the general s ubject matter of this suit. Northeast Hospitality argues that information regarding Worth en’s receipt of public assistance is helpful in obtaining Worthen’s complete employment history and her character for truthfulness. With these reasons, Northeast Hospita lity has met its minimal burden, here.

ORDER
For the foregoing reasons, DCF’s motion to quash i s DENIED and Worthen’s motion to quash is DENIED.

Dated at Burlington, Vermont, June 6, 2005.

________/s/________________ Richard W. Norton Judge