176 A.3d 1097
R.I.2018Background
- James Viner, a North Kingstown High School chemistry teacher, faced allegations of inappropriate conduct after a student complaint; the school committee’s attorneys investigated and reported to school officials.
- The school committee held pre-hearing and full evidentiary proceedings in 2015, ultimately voting to suspend Viner without pay for the 2015–2016 year and to terminate his employment thereafter; Viner appealed to RIDE.
- A RIDE hearing officer issued three subpoenas under G.L. 1956 § 16-39-82: witness subpoenas for the school committee’s attorneys (Mary Ann Carroll and Aubrey Lombardo) and a subpoena duces tecum to the school department.
- The school committee petitioned the Superior Court to quash the three subpoenas; the Superior Court granted the motion as to the attorneys’ subpoenas but denied it in other respects; Viner appealed.
- The Supreme Court reviewed de novo the scope-of-privilege question and concluded the hearing justice had erred by quashing the attorney subpoenas wholesale rather than requiring testimony or depositions with question-by-question privilege claims.
- The Supreme Court vacated the quash orders as to the attorneys, affirmed the judgment in other respects, and remanded for the hearing justice to permit in-person or deposition testimony with individualized privilege rulings; administrative proceedings should await that resolution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the hearing justice properly quashed subpoenas for school committee attorneys on attorney-client privilege grounds | Viner argued the hearing justice applied the privilege too broadly and failed to make question-by-question determinations; he sought testimony/deposition to identify nonprivileged topics | School committee argued Viner did not identify viable nonprivileged areas of inquiry, so quash was justified | Court held privilege must be narrowly construed; attorneys must testify or be deposed and privilege asserted question-by-question; wholesale quash reversed |
| Appropriate standard of review for privilege-scope rulings | Viner relied on precedent that scope-of-privilege is a legal question | School committee did not contest de novo review of privilege scope | Court reviewed scope de novo and applied narrow-construction principle |
| Whether other available materials (e.g., investigators’ interviews) justified barring attorney testimony | School committee contended interviews already provided the information sought from attorneys | Viner maintained attorneys could provide nonprivileged factual testimony beyond documents | Court found presence of other materials did not obviate need for live testimony and individualized privilege rulings |
| Ripeness / prudential review given ongoing administrative appeal | Viner and majority proceeded; majority acknowledged potential ripeness concerns but decided case; dissent argued case was unripe because Council appeal pending | School committee argued interlocutory review was premature | Court proceeded to decide on merits despite dissent; remanded for further in-court privilege determinations |
Key Cases Cited
- United States v. Bisanti, 414 F.3d 168 (1st Cir. 2005) (articulates three-part standard of review for privilege and related rulings)
- United States v. Mejia, 655 F.3d 126 (2d Cir. 2011) (distinguishes factual applicability of privilege from legal question of its scope)
- United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009) (reviews scope-of-attorney-client-privilege issues de novo)
- In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65 (1st Cir. 2011) (blanket privilege assertions are generally insufficient)
- United States v. Lawless, 709 F.2d 485 (7th Cir. 1983) (approves requirement that witnesses assert privilege question-by-question under court oversight)
- Pastore v. Samson, 900 A.2d 1067 (R.I. 2006) (attorney-client privilege must be narrowly construed)
- State v. von Bulow, 475 A.2d 995 (R.I. 1984) (assigns burden of persuasion to party asserting privilege)
- Lead Industries Ass'n, Inc. v. 64 A.3d 1183 (R.I. 2013) (factual/evidentiary determinations reviewed for abuse of discretion; legal questions de novo)