pease v. grinold ( 2023 )

STATE OF VERMONT
RUTLAND COUNTY
KATHY PEASE and MICHAEL PEASE, )
As Co-Administrators of the Estate of —)
Ashley Pease, Deceased, ) Rutland Superior Court
Plaintiffs, ) Docket No. 582-9-05 Rdev
)
v. ) ORIGINAL raPER
) RUTLAND SUPERIOR COURT
SEAN GRINOLD and )
COLLEEN KENNEDY, ) APR 15 2008
Defendants. )
DECISION
Motion to Modify and Quash Subpoena Duces Tecum, filed 6/25/2007 (#41)
Motion for Protective Order, filed 1/28/2008 (#51)
Motion for Reconsideration, filed 2/1/2008 (#52)
The present matters before the Court are the Motion to Modify and Quash
Subpoena Duces Tecum, filed June 25, 2007, by the Commissioner of the Vermont
Department of Public Safety (DPS), the Motion for Protective Order, filed January 28,
2008, by DPS, and the Motion for Reconsideration, filed February 1, 2008, by Plaintiffs.
DPS is represented by Howard A. Kalfus, Esq. Defendant Colleen Kennedy is
represented by John Paul Faignant, Esq. Defendant Sean Grinold is represented by
Thomas P. Aicher, Esq. Plaintiffs Kathy Pease and Michael Pease, as Co-Administrators
for the Estate of Ashley Pease, are represented by Lars Lundeen, Esq.
This action involves an automobile accident, and one of the central issues is
whether Ashley Pease or Sean Grinold was operating the vehicle at the time of the crash.
The primary investigation was performed by former Vermont State Trooper Mary (Sabo)
Burns. During her deposition, she testified that she prepared an official accident report
that identified Sean Grinold as the operator at the time of the crash, although she admitted
that this conclusion was based upon hearsay information provided to her by Mr. Lundeen,
who represents the co-administrators of the Estate of Ashley Pease. She also testified
that she was certified as an accident reconstructionist, that she subsequently left her
employment as a state trooper because she was offered another job, and that she had
never been subject to disciplinary proceedings.
After the deposition, Ms. Kennedy discovered information from the Vermont
State Police tending to show that Ms. Burns authored a second incident report in which
she identified Ashley Pease as the operator of the vehicle at the time of the crash.
Moreover, Ms. Kennedy has represented to the Court that she is in possession of credible
information tending to show that Ms. Burns was in fact terminated from the Vermont
State Police for falsifying her on-call records and inflating her payroll.
Based upon this information, Ms. Kennedy served a subpoena duces tecum on the
Department of Public Safety on June 13, 2007, requesting production of (1) personnel
files related to Mary (Sabo) Burns, including applications for employment, certificates of
training, and commendations, awards, or disciplinary actions, and (2) any disciplinary
files, including investigative reports and transcripts of disciplinary hearings related to Ms.
Burns’ employment with and termination from the Vermont State Police. Ms. Kennedy
argues that production of the personnel and disciplinary files are necessary to verify Ms.
Burns’ claimed credentials and discover information relevant to her statements about the
timing of her report, whether she was subject to any disciplinary proceedings; and the
reason she left her employment with the Vermont State Police. Ms. Kennedy argues that
the investigatory files, in particular, will show whether an internal investigation
conducted by DPS had found Ms. Burns to be untruthful.
DPS filed a Motion to Modify and Quash Subpoena Duces Tecum (MPR #41).
DPS argues that Ms. Burns was not provided with an adequate opportunity to respond to
the subpoena request for production of the personnel files, as required by 12 V.S.A.
§ 1691a, and that the Court should at least allow forthe redaction of home addresses,
financial information, and social security numbers from the personnel files. In addition,
DPS argued that complaints related to the conduct of Vermont State Police Troopers are
handled by the DPS Office of Internal Investigation, whose records are made confidential
by 20 V.S.A. § 1923(d), and that Ms. Kennedy had not made a sufficient showing of
need.
Based upon these two documents, the Court denied MPR #41 on December 20,
2007, on the grounds that “the requisite showing has been made for discovery of the
requested material.” However, in a letter filed January 10, 2008, by Mr. Kalfus, the
Court became aware that the document containing Ms. Kennedy’s showing of need had
never been served upon DPS, and that DPS had also never been served with the entry
order denying the Motion to Quash.
Plaintiffs accordingly filed a Motion for Reconsideration (MPR #52) on February
1st, arguing that they had been prejudiced by various failures of service. Plaintiff
additionally offered substantive arguments regarding the merits of the subpoena and the
Motion to Quash, including arguments that § 1923 contains no exceptions for use of
Internal Investigation files in court proceedings, that the Court has no power to override
the Legislature’s definition of the scope of a privilege, and that Ms. Kennedy had not
articulated a constitutional basis for overriding the privilege akin to the due-process rights
accorded to criminal defendants. State v. Roy, 151 Vt. 17, 32 (1989).
Ms. Kennedy responded on February Ath by arguing that Plaintiffs had no
standing to assert a privilege on behalf of either Ms. Burns or the State, and that Ms.
Burns had waived any objection to production of her employment records by failing to
respond to the notice provided to her. Ms. Kennedy also argued that confidentiality
under § 1923 is not absolute, in that the statute contemplates disclosure of records to the
public by the State Police Advisory Commission “to ensure that proper action is taken in
each case.” 20 V.S.A. § 1923(d)(3).
During a hearing on February 4th, the Court noted the various failures of service
that had occurred, and accordingly vacated its entry order on the Motion to Quash and
provided additional time for responses to the Motion to be filed. This action rendered
Plaintiffs’ Motion for Reconsideration moot.
DPS then filed an additional response on February 19th. For the first time, DPS
argued that production of personnel records is prohibited by the Public Records Act, 1
V.S.A. § 317(c)(7), which exempts from public inspection and copying all “personal
documents relating to an individual, including information in any files maintained-to hire,
evaluate, promote or discipline any employee of a public agency.” DPS also requested in
camera review of the personnel records so that the Court may weigh the competing
privacy interests of Ms. Burns against the need asserted by the litigants. Kade v. Smith,
2006 VT 44, 180 Vt. 554 (mem.). Additionally, DPS argued that the statutory exceptions
listed in § 1923(d) did not fit the facts of this case, that Ms. Kennedy’s showing of need
did not rise to the level set forth in Roy and Jn re Grievance of Danforth, 174 Vt. 231(2002), and that any need asserted by Ms. Kennedy was diminished by the fact that any
records obtained would not be admissible as extrinsic evidence of specific instances of
conduct showing a witness’s character for truthfulness. V.R.E. 608(b).
Finally, Plaintiffs offered a supplemental memorandum of law on February 19th.
In addition to repeating the argument that the statutory exceptions listed in § 1923(d) do
not fit the facts of this case, Plaintiffs argued that Ms. Kennedy’s assertions of need were
made as representations in a memorandum, and not as sworn affidavit testimony made on
personal knowledge.
For the following reasons, the Court holds that DPS must produce the personnel
records because Ms. Burns has not objected to such discovery, and that Ms. Kennedy has
not made a sufficient showing of need to warrant production of the internal investigation
records at this time. It is therefore unnecessary to address the additional arguments
advanced by the parties regarding Plaintiffs’ standing to raise or defend a claim of
privilege, and the scope of discovery available under § 1923(d).
Personnel Files
The procedure for discovery of personnel files in a civil action is set forth by 12
V.S.A. § 1691a, which requires that the employee be served with notice of the request
and provided an opportunity to respond and object. Ms. Burns has now been provided
with notice and has had a more-than-adequate opportunity to respond and object. She has
not filed any objection with the Court. /d. § 1691a(i).
However, DPS is not precluded from asserting an independent basis to resist
production of the personnel file, and has argued that the request for “any and all
personnel records” is protected by the Public Records Act, 1 V.S.A. § 317(c)(7).
Subsection (c)(7) defines the category of public records exempt from public inspection
and copying as including “personal documents relating to an individual, including
information in any files maintained to hire, evaluate, promote or discipline any employee
of a public agency.” Such information is exempted from public disclosure because it
may include information which reveals “intimate details of a person’s life, including any
information that might subject the person to embarrassment, harassment, disgrace, or loss
of employment or friends.” Ti rombley v. Bellows Falls Union High School Dist. No. 27,
160 Vt. 101, 110 (1993) (citations omitted).
The Public Records Act creates exemptions dealing with disclosure to the public
generally. It does not deal with disclosure in response to discovery requests in litigation,
and does not create an evidentiary privilege in a court proceeding. Douglas v. Windham
Superior Court, 157 Vt. 34, 38 n.2 (1991). Therefore, § 317(c)(7) does not provide an
independent basis to resist production of the personnel file.
Moreover, Ms. Burns has not objected to production of any information from her
personnel file, despite having had notice and an adequate opportunity to do so.
Therefore, there is no need for an in camera review to balance Ms. Burns’ claims to
privacy against the litigants’ demonstration of need, and there is no need for redaction of
home addresses and financial information, as Ms. Burns has not objected to disclosure of
this information. The parties have conceded that redaction of social security numbers is
appropriate. For these reasons, the Motion to Quash is denied with respect to the
personnel files requested in section (1) of the Subpoena. DPS may redact social security
numbers from the files prior to production.
Disciplinary/Investigatory Files
As discussed more fully above, Ms. Burns testified during her deposition that she
had never been the subject of any disciplinary proceedings, and that she left her
employment with the State Police because she was offered another job. Ms. Kennedy
represents that she has since discovered information that Ms. Burns was in fact
terminated from her employment with the State Police for falsifying her on-call records
and inflating her payroll records. Ms. Kennedy secks production of Ms. Burns’
disciplinary and investigatory records in order to impeach the statements Ms. Burns made
during her deposition, and to impeach Ms. Burns’ character for truthfulness and veracity.
It is likely that Ms. Burns will be called as witness to offer opinions regarding the
cause of the accident, and who was driving at the time of the crash. The credibility of her
opinions, and her character for truthfulness and veracity, will be important to the jury’s
determination of the weight to be afforded her testimony. It is reasonable to anticipate
that the personnel file will contain information relevant to confirming whether or not Ms.
Burns was terminated from the State Police for falsifying records, as well as information
relevant to whether Ms. Burns was subjected to any other disciplinary proceedings. Ms.
Kennedy may utilize other discovery tools to follow up on information she obtains from
the personnel file as well as from other sources. Though Ms. Kennedy has demonstrated
that the issues are important to the case, she has not demonstrated a sufficient need for
discovery of the internal investigation files, at this time.
Because need for the requested discovery has not been shown, the court need not
address the legal issue argued by DPS, namely, whether, under the circumstances of this
case, discovery is available in view of the provisions of 20 V.S.A. § 1923. The Motion to
Quash (MPR #41) is granted with respect to the confidential files requested in section (2)
of the subpoena. Furthermore, because DPS sought protective conditions concerning
release of the internal affairs files protected by § 1923, and those files are not being
released at this time, the Motion for Protective Order (MPR #51) is denied as moot.
ORDER
For the foregoing reasons,
(1) DPS’ Motion to Modify and Quash Subpoena Duces Tecum, filed June 25,
2007 (MPR #41), is denied with respect to the personnel files requested in section (1) of
the subpoena, and granted with respect to the investigatory files requested in section (2)
of the subpoena,
(2) DPS’ Motion for Protective Order, filed January 28, 2008 (MPR #51), is
denied as moot; and
(3) Plaintiffs’ Motion for Reconsideration, filed February 1, 2008 (MPR #52), is
denied as moot.
Dated at Rutland, Vermont this 14th day of April, 2008.
Wp, boo Search dS
Hon. Marj Miles Teachout
Presiding Judge