The Providence Journal reports that Providence College is challenging Superior Court Judge Patricia Hurst’s extremely thorough 106-page decision and order to turn over supposed privileged documents related to interviews between witnesses and Providence College’s associate general counsel after the tragic death of 19-year-old John D. Langley in December 2002.
In an appeal to the RI Supreme Court, appellate attorneys for Providence College argue that the documents are privileged pursuant to the attorney-client and work-product privileges and should not be released. The lawsuit claims that the school’s insufficient safety precautions caused the plaintiff’s son to fall from the roof of a four-story dormitory.
Here are some excerpts from Judge Hurst’s decision:
This case is before the Court for decision in the continued proceedings on Plaintiff’s Motion to Compel Production of Documents Withheld Under Claim of Privilege. At issue are two witness statements, in the form of written memoranda; six purported transcriptions of recorded witness interviews; and the content of three microcassette audio recordings of the witness interviews—all of which have been reviewed by the Court, in camera. Also at issue is the pattern of concealment, evasion, and obstruction evidenced by Providence College’s discovery responses and representations made to the courts of this State.
Even assuming ineptitude rather than calculation caused Providence College to omit precious facts and information from its discovery responses—or that Lema, Sicard, McGinn, Dyer, and three seasoned litigators with the prestigious law firm of Hinckley Allen Snyder, LLP were all were guilty of mere sloppiness only—the hardship to the Plaintiff is evident. Contrary to Providence College’s arguments concerning the Plaintiff’s lack of hardship, what speaks loudest is that after more than three years of litigation and nine supplemental discovery responses, Providence College failed to admit the treasure trove of facts and information contained in the voice recordings and witness 93 statements. Then, more than a year later, when it finally produced its Tenth Supplemental Answers, Providence College continued to omit material facts and information.
The history and substance of the College’s discovery responses evidence a pattern of obfuscation, concealment, and delay in the disclosure of material facts and information possessed by these witnesses, and as such, the Plaintiff’s hardship was hardly selfinduced. Moreover, with the lapse of time now having called the witnesses’ memories into question, the only remaining means of obtaining the facts within their knowledge and imputed to Providence College might well be for the Plaintiff to press Providence College on requests to admit facts and information preserved in its institutional memory and imputed to it—something the Plaintiff cannot do without the statements and voice recordings and even assuming such a course of action would prove effective given the overall circumstances.
Truly, there is no better evidence of the Plaintiff’s hardship than Providence College’s ten sets of discovery responses and the contents of its employees’ depositions. Plainly, the Plaintiff has met his burden in demonstrating that he is unable to obtain substantially equivalent material by other means. Accordingly, the written statements and accurate transcripts of the witness interviews must be produced to the Plaintiff, redacted of material possibly reflecting attorney mental impressions and legal theories.
In Section IV, entitled “Fraud on the Court; Super. R. Civ. P. 11; Super. R. Civ. P. 26; Super. R. Civ. P. 37,” Judge Hurst writes:
…the record demonstrates that Providence College worked very diligently to avoid disgorging facts and information in its possession and critical to essential elements of the Plaintiff’s claims against it. Not only did Providence College, Sicard, and Lema fail to disclose the discoverable information omitted from the recorded interview transcriptions, but it also failed to disclose those that, in fact, were contained within them and the witnesses’ written statements. Therefore, there is simply no excuse for their failure to disgorge the information. Further, when viewed in their totality and in the context of the ongoing discovery dispute in this case, Providence College’s interrogatory answers appear to have been artfully crafted and, together with the timing and sequence of the answers, evidence an overall scheme designed to obscure and confuse the truth about what the College knew, among other things, regarding students using the attic as an unauthorized retreat. The skillfully wrought and obfuscating answers evidence a pattern of recalcitrance amounting to the obstruction of discovery in this case. It seems evident that it could only have been with much calculation that the College avoided revealing the existence of the contested materials and for so long refused to reveal all of the facts and information memorialized in them.
Likewise, Providence College’s actions with respect to its attempt to wrest jurisdiction from this Court speak loudly. The College’s manipulation of Court employees and the appellate process, together with its disregard of the rules and practices of the Superior and Supreme Courts, smacks of the same masterminded skill it deployed when avoiding its discovery obligations.
At this juncture, the extent to which any one of the College’s various attorneys, employees, and officials may have believed the interrogatory answers were misleading or false or who may have participated in a fraud upon the Court or attempted to obstruct this Court’s administration of justice cannot be discerned. Whether they actively participated in a fraud, acquiesced in one, or merely failed to take the basic steps that would have averted it in the first instance also cannot be discerned upon this record.
Regardless, questions about what should be done about Providence College’s conduct in failing to respond to the Plaintiff’s legitimate discovery requests is beyond the scope of this Decision. Ultimately, Providence College might prevail in its efforts to protect the contested materials, and ordering the College to make new or additional responses to the discovery requests may or may not suffice. Moreover, there is no way to confirm whether there are other witnesses, witness statements, documents, materials, or other information that Providence College has not yet revealed and no assurance that Providence College would be truthful in its future responses. It cannot be ignored that the College’s cover up appears to have taken place at the highest levels of its administration. Moreover, even if the contested materials are finally ordered produced, the litigation in this case has become unnecessarily protracted and trial delayed, both of which cause inherent harm to the litigants, the truth-seeking process, and the cause of justice.