Gates v. Mack Molding

7ermont Superior Court
Filed 04/18
Rutland

VERMONT SUPERIOR COURT CIVIL DIVISION
Rutland Unit Case No. 23-CV-02626
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

Donald Gates, Jr. v. Mack Molding Company, Inc. et al

ENTRY REGARDING MOTION
Title: Motion For Protective Order And To Quash Subpoenas -
EMERGENCY
(Motion: 5)
Filer: Frederick David Harlow
Filed Date: February 03, 2025

In this wrongful termination action, the court issued an order on March 7, 2025 denying
without prejudice Defendants' motion to quash and for a protective order regarding a subpoena
for certain documents. Defendants supplemented their motion on March 19, 2025. Plaintiff filed
a response on April 2, 2025 and Defendants filed a reply on April 16, 2025. For the reasons
stated below, Defendants' motion is GRANTED.

Pursuant to V.R.C.P. 26(b)(1), a party is entitled to "discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense and proportional to the
needs of the case." The subpoena at issue requests production of the following documents by
Attorneys David Harlow and Timothy Copeland:

[A]ll information, papers, emails, notes, documents, recordings and evidence in
native format about and relating to the facts pertaining to: (1) Attorney Harlow's
email dated 6/18/20 sent to [Plaintiff's] counsel regarding the Gates and the facts
contained in this email, and (2) Jessica Fredette's meeting and the questions she
asked at this meeting with Plaintiff on 5/6/19.

Ex. 4 to Pl.'s Opp'n to Def.'s Mot for Protective Order & to Quash Subpoenas (filed Feb. 17,
2025). Defendants assert these documents are protected by either the attorney client privilege or
by attorney work product. As part of their supplemental filing, the Defendants provided a
privilege log pursuant to V.R.C.P. 45(d)(2)(A). Ex. A. This privilege log identifies 73 emails
the Defendants have withheld. The privilege log identifies the sender and receiver(s) of the
emails, the subject and/or title of the emails, and the privilege being asserted.

"A party asserting [a] privilege has the burden of proving (1) the existence of a protected
privilege under law, and (2) the information sought was privileged information." State v.
Springer, 139 Vt. 471, 474 (1981). Defendants have met there burden here. The attorney-client
privilege is defined in Rule 502 of the Vermont Rules of Evidence, which states:
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A client has a privilege to refuse to disclose and to prevent any other person from
disclosing confidential communications made for the purpose of facilitating the
rendition of professional legal services to the client (1) between himself or his
representative and his lawyer or his lawyer’s representative, (2) between his
lawyer and the lawyer’s representative, (3) by him or his representative or his
lawyer, or a representative of the lawyer to a lawyer or a representative of a
lawyer representing another party in a pending action and concerning a matter of
common interest therein, (4) between representatives of the client or between the
client and a representative of the client, or (5) among lawyers and their
representatives representing the same client.

V.R.E. 502(b). The term “client” includes corporations such as Defendant. V.R.E. 502(a)(1).
Attorney Copeland’s and Attorney Harlow’s relationship with Defendant is solely as their
attorneys. The emails identified in the privilege log show communications between defense
counsel and their clients or their expert. Plaintiff contests the privilege log is insufficient to
demonstrate a privilege exists for these documents. The court disagrees.
“The standard for testing the adequacy of the privilege log is whether, as to each
document, it sets forth specific facts that, if credited, would suffice to establish each element of
the privilege that is claimed.” Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 648
(S.D.N.Y. 2019) (citations and quotations omitted). Defendants have met this standard. Each
email identifies the sender and receiver, as well as the title of the email. “The key factor in
determining applicability of this doctrine is whether the documents or things were prepared ‘with
an eye toward’ or ‘in anticipation of’ or ‘because of the prospect of litigation.’” Id. (quoting
Pearlstein v. BlackBerry Ltd., 2019 WL 1259382, at *5 (S.D.N.Y. Mar. 19, 2019)). It is clear
from the privilege log that these emails were in the context of an ongoing litigation and concerns
about Plaintiff’s recordings. That falls squarely within the context of ongoing and prospective
litigation. These emails would not have existed but for the ongoing and prospective litigation.
Id. at 649 (“a court must determine if the material would have been prepared in essentially
similar form irrespective of litigation” (quotations and citations omitted)).
The documents not covered by the attorney client privilege are protected by attorney
work product. Attorney work product is protected under V.R.C.P. 26(b)(4), which prohibits
discovery of documents and tangible things “prepared in anticipation of litigation or for trial”
unless “the party seeking discovery has substantial need of the materials in the preparation of the
party's case and that the party is unable without undue hardship to obtain the substantial
equivalent of the materials by other means.” Documents containing the “mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative of a party
concerning the litigation” are protected from disclosure. Id. This includes “witness statements
prepared at the request of the attorney and an almost absolute privilege for notes taken during a
witness interview.” Energy Policy Advocates v. Attorney General’s Office, 2023 VT 43, ¶ 9
(citations and quotations omitted). The documents Plaintiff seeks are documents prepared by
defense counsel in preparation of a witness interview in the context of pending a prospective
litigation. This falls squarely within the work product rule.
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The attorney client privilege and the attorney work product were not waived. “Like the
attorney-client privilege, the work-product protection can be waived where the party claiming
the privilege had previously disclosed the document in a way which substantially increases the
possibility of its adversary obtaining it.” Id. The documents identified in the privilege log have
not been previously disclosed. The court disagrees that referencing a protected document is the
same as disclosure. Based upon the information before the court, there has been no waiver of
either privilege by the Defendants.
Defendants seeks a protective order pursuant to V.R.C.P. 26(c), which allows the court,
for good cause shown, to “make any order which justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Defendants have
demonstrated good cause to issue a protective order prohibiting Plaintiff from discovering
protected and privileged documents.
Order
1. The subpoena issued for privileged documents is quashed.
2. Plaintiff is precluded from discovering the documents identified in the privilege log.

Electronically signed on April 18, 2025 pursuant to V.R.E.F. 9(d)

__________________________
Alexander N. Burke
Superior Court Judge

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