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STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. CIVIL ACTIONS
Edward Kelmenson, M.D.
Plaintiff

Individuals Described in Paragraph 5 and 6
of the March 19, 2004 Affidavit of
Attorney Charles E. Gilbert, I11
ORDER (Motion for Protective Order)
Eastern Maine Medical Center,
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Individuals Described in Paragraph 5 and 6
of the March 19, 2004 Affidavit of Attorney Charles E. Gilbert, I11
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Pending before the court is the motion of Charles E. Gilbert, 111, Esq. for a
protective order relieving him from any obligation to submit to examination on depssition regarding the identities of persons who provided him with irformztion that may bear on a medicai negiigence case in which Giibert appears as piaintiE2s counsei. The court has considered the parties' submissions on the motion. The background of the actions at bar is set out in a limited way in the court's order dated November 10, 2004. The present proceedings are separate but, at least for present purposes, have essential common elements and so are addressed in this consolidated order.
Pursuant to the court's November 2004 order and a subsequent order issued on January 3, 2005, following a discovery dispute conference, counsel for the plaintiffs deposed Gilbert for the purpose of creating a predicate record on which to develop the issue at hand. At those depositions, which, because the proceedings at bar are distinct, were separate but sequential, plaintiffs' counsel asked Gilbert to identify the names of those persons who provided him with the information set out in paragraphs 5 and 6 of the rule 56(f) affidavit that Gilbert had submitted in response to a summary judgment motion filed by EMMC in the underlying malpractice case.' In his affidavit, Gilbert stated that he spoke with several people "[als part of my investigation of this matter [the underlying negligence case]." Stating that these sources did not wish to be identified, he then described some of the information they provided to him. At the deposition, Gilbert declined to identify those sources, asserting, among other things, that any such response constituted w~rkproduct and was not subjert, tq compelled disclosure For the reasons set out below, the court agrees that, as the issue has been pursued here, the identities of
warrant disclosure.
As a general matter, through the discovery process a party is entitled to obtain information about "the identity and location of persons having knowledge of any discoverable matter." M.R.Civ.?. 26(bj(l). Here, the plaintiffs seek to compel Gilbert KO provide information that is more specific than this allowance: they have posed questions relating directly to the identities of persons who, directly or indirectly, provided Gilbert with investigative information that may be relevant to the underlying action for professional malpractice. In response, Gilbert has invoked the conditional privilege of work product. This triggers a burden-shifting analysis: the party asserting the work product privilege bears the burden of demonstrating the applicability of that doctrine, and if tiiai burden is met, then the parry seeking discovery must demons~rate tnat, notwithstanding the work product quality of the requested information, non-disclosure exceeds the scope of the privilege. Springfield Terminal Railway Co. v. Department of
'For the reasons set out in the November 2004, the affidavit remains under seal. This order will not be impounded because it does not contain previously undisclosed information that is confidential under 24 M.R.S.A. fj2857.
Transportation. 2000 ME 126, 15, 754 A.2d 353, 257. Even in this latter instance,
there is an absolute privilege that protects against the disclosure of an attorney's mental
impressions, conclusions, opinions and legal theories. Id.
The court takes a particularly expansive view of the work product protection
because, here, the plaintiffs seek to extract information from the attorney who represents
2 claimant in a related case. Although the record does not support Gilbert's contention
that the plaintiffs' efforts to depose him amount to harassment, when it is seen in more
general terms, a practice of pursuing discovery directly from trial counsel, even where the
attorney is counsel of record in a separate but related case, is properly characterized "as
disruptive [to] the adversarial nature of our judicial system," and it can only inhibit an
attorney's inclination to properly investigate the circumstances that did or could generate
a legal claim for concern that those investigative efforts and analytical process will be
subject tc> dirclosure. See Shelton v. American motor.^ Corp., 805 F.2d 1323, 1327 (gth
Cir. 1986).
'J'he court treats the uciverse P:~~P_C~P_-~ iz a bread way. The !2nm119m~
m2teria!s
bUUbU
of rule 26(b)(3) purports to protect against the disclosure only of "documents and tangible things." Here, the plaintiffs do not seek to compel production of such materials. Rather, they want to compel Gilbert to provide testimonial (i.e., non-documentary and intangible) evidence about the identity of those persons who provided him with certain information. The seminal work product case is Hickman v. Taylor, 329 U.S.495 (1947). There, the Supreme Court defined "work product" as information contained "in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways." Id. at 51 1. One leading commentator has noted that although the work product rule framed in the rules of civil procedure purports to apply only to tangible material, "Hickman v. Taylor c~ntinues to
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ylute~ilul~ within iis definition that is not embodied in iangibie form. . . .Indeed, since intangible work product includes the thoughts and recollections of counsel, it is often eligible for the special protection accorded opinion work product." 8 Wright and Miller, FEDER~L AND PROCEDURE
PRACTICE

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