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

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the 

original. The accuracy of the text and the accompanying data included in the Vermont trial court 

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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, Sandra Worthen, incurred as a result 

of harassing behavior of an occupant of the hotel where she worked. Worthen has sued 

her employer, the hotel general manager, and the hotel 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 Division/Economic Services in order to 

obtain documents related to services that Worthen obtained after her employment with 

 

1

 Worthen pleads this claim as “constructive discharge.” 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 Services (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 Northeast Hospitality seeks. Worthen 

argues that the information that Northeast Hospitality seeks is irrelevant. 

 As an initial matter, the court assumes that Northeast Hospitality intends to change 

its subpoena to specify the appropriate agency. According to DCF, the appropriate 

agency is presumably the Family Services Division of 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 prohibits 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 applying for or receiving income assistance. 

Section 111 provides that “[t]he names of or information pertaining to applicants for or 

recipients of assistance or benefits . . . shall not 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 this provision does not create an 

evidentiary privilege. In re F.E.F., 156 Vt. 503, 514 (1991). “The general confidentiality 

statute gives way when disclosure is provided by law, 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 information 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 from 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 administering federal aid].” 42 C.F.R. § 431.301 

(2004). State agencies “must have criteria that govern the types of information about 

applicants and recipients that are safeguarded.” Id. § 431.305(a). Such criteria must 
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include, among other information, names and addresses, medical services provided, 

social and economic conditions or circumstances, agency evaluation of personal 

information, medical data, and information received for verifying income. Id. § 

431.305(b)(1)–(6). “If a court issues a subpoena for a case record or for any agency 

representative to testify concerning an applicant or recipient, the agency must inform the 

court of the applicable statutory provisions, policies, and regulations restricting disclosure 

of information.” Id. § 431.306(f). 

 These regulations merely indicate that the information sought is confidential. They 

do not expressly create an evidentiary privilege. The court will not infer a privilege 

unless an evidentiary statute or rule strongly implies the privilege. See F.E.F., 156 Vt. at 

514 (“Because evidentiary privileges directly undercut 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.”); see 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 privileges and “address only the appropriate 

agency response” to request for information in legal 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 information which Northeast 

Hospitality seeks in its subpoena is privileged, and therefore, the court will not quash the 

subpoena on the ground that it seeks confidential information.2

 If DCF so desires, 

however, the court will review the documents in camera and entertain a motion for a 

protective order in order to protect the confidentiality of certain information with the 

documents pursuant to V.R.C.P. 26(c). 

 

2

 Although not raised by the parties, the court notes that the information may fall under a 

common law “required reports” or “confidential reports” 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 Vermont 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 law “required reports” privilege, the privilege 

generally requires a statutory instruction that information in the “required report” be privileged 

and inadmissible in court. 1 Michael H. Graham, Handbook of Federal Evidence § 502.1 (2001). 

As discussed above, no such express statutory requirement exists here. 
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 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 less 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 case. Rather, “[p]arties may obtain 

discovery regarding any matter, not privileged, which 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 (1995) (“The scope of production under 

a subpoena that is incorporated by reference in Rule 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 subject matter of this suit. Northeast 

Hospitality argues that information regarding Worthen’s receipt of public assistance is 

helpful in obtaining Worthen’s complete employment history and her character for 

truthfulness. With these reasons, Northeast Hospitality has met its minimal burden, here. 

ORDER 

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

motion to quash is DENIED. 

 Dated at Burlington, Vermont, June 6, 2005. 

________/s/________________ 

Richard W. Norton Judge