The Attorney General Seeks Protection
In civil cases Protective Orders are used to keep confidential some information that might be an annoyance, an embarrassment, or a burden if that formation were released to the public. An example of such information are medical records.
The Attorney General (AG) is seeking a Protective Order to prevent the Plaintiff from seeing his own personnel file at the Massachusetts Human Resources Division (HRD). The Plaintiff in Davis vs. AG and HRD has a legal right to access his personnel records as seen in Kessler vs. Cambridge Healtcare. It can be inferred that the personnel files of the Plaintiff has dispositive information.
Below is the Plaintiff's Opposition Memo to the AG's Motion for a Protective Order.
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COMMONWEALTH
OF MASACHUSETTS
WORCESTER,
SS
SUPERIOR COURT
Docket No. 1785 CV00873 D
********************************
GORDON T. DAVIS, Plaintiff
Vs.
Massachusetts Human Resources
Division,
Office of Massachusetts Attorney
General
Defendants
********************************
PLAINITFF’S OPPOSIITION
TO DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
In accordance with Mass. Rules of Civil Procedure the
Plaintiff, Gordon T. Davis, opposes the Defendants’ Motion for Protective Order
dated August 9, 2017. The arguments in the Defendants’ Motion for Protective
Order are erroneous or immaterial to the Complaint. Alternatively the
Defendants’ Motion contains errors of material facts nullifying their Motion.
The Defendants based their Motion for Protection on the
following assertions.
a. The Defendants assert that the Plaintiff
has received the documents he has requested.[1]
DENIED. The Plaintiff denies he has received any documents whatsoever
from the Massachusetts Human Resource Division.
b. The Defendants assert without any
evidence that the allowance of the Motion for Protective Order would be
efficient and save the Court’s resources.
DENIED; The Plaintiff has proffered a settlement that in exchange for his
HRD file, the Plaintiff would withdraw the Complaint. This settlement would be
the most efficient resolution for everyone. This is evidence that the Court’s resources
is not a true issue for the Defendants.
(Exhibit 1)
c. The Defendants assert that it is
common practice to stay discovery while a Motion to Dismiss is pending.
This assertion is immaterial. The facts of this case should be
considered. The Defendants’ Motion to Dismiss is fragile. There are errors of
material facts that is likely to nullify their Motion to Dismiss. The
Defendants’ Motion to Dismiss is also likely to fail because of errors in the
interpretation of the Statute. (Exhibit 2)
The errors found in the Defendants’ Motion to Dismiss are again made in
their Motion for a Protective Order.
The Defendants admits in their Motion to dismiss that the Plaintiff has a
right of private action as seen in Kessler vs. Cambridge Healthcare.[2]
d. The Defendants’ claim without
evidence that providing the documents requested in Discovery would be a burden.
DENIED: The Defendants are required by Chapter 149 Sec. 52C to provide
copies of employees’ personnel records. They are set up to do so and they do so
on a regular basis. There is no evidence in the Motion that providing the personnel
records of the Plaintiff to the Plaintiff would create an issue that rises to
the level of “burden”.
e. The Defendants assert that the Plaintiff
lacks standing is not an employee of the HRD,
DENIED: The Plaintiff was an employee of the Commonwealth which the MCAD
and HRD are a part. Both the MCAD and the HRD maintain and have custody of
parts of the personnel records of the Plaintiff.
The Defendants’ have not once denied that the HRD has some or all of the
Plaintiff’s personnel records. The Defendants’ have only asserted that the
Plaintiff is not an employee of the HRD. It can be inferred that if the HRD did
not have some or all of the Plaintiff’s personnel, their counsel would use that
as a defense.
f. The Defendants assert that basic “fairness”
requires the Court to protect the Defendants. [3]
DENIED: The Defendants admit that
the Plaintiff has a right to his personnel record. The Statute compels the
Commonwealth to provide Plaintiff’s personnel records to him in five (5)
business days. The Defendants’ admit that the Plaintiff has spent seven (7)
years trying to get his personnel record. Basic fairness would be that the
Plaintiff should get his personnel record without further delay or pretextual
court tactics.
g. The Defendants assert that the
Plaintiff lacks standing to sue the Massachusetts Human Resources Division
(HRD).
DENIED: M.G.L. Chapter 149, Sec.
52C allows the Plaintiff to sue HRD. This right of private action has been
affirmed in Kessler vs. Cambridge Health
care.
h. The Defendants assert that the
Plaintiff is barred by Sovereign Immunity.
DENIED: M.G.L. Chapter 149, Sec.
52C waives Sovereign Immunity for public entities and their agents.
i.
The
Defendants assert that the Plaintiff has not stated a claim for which the court
can grant relief.
DENIED: Case law has established
that the Plaintiff has a right of private action, (Kessler vs. Cambridge Healthcare). The relief sought by the Plaintiff
is that the Plaintiff is allowed access to his personnel record in the custody
of the HRD and allowed to correct any errors in it.
ARGUMENTS
The
Defendants have not asserted any reason to “protect” the Plaintiff’s personnel
records from the Plaintiff
The Defendants have not
provided any evidence of what documents are to be protected nor why those
documents should be protected from the Plaintiff.
The Defendant HRD asserts
that it was not the employer of the Plaintiff. If this assertion is true then
defense counsel could have raise as a defense that HRD does not have custody of
the Plaintiff’s personnel records.
It can be inferred that the
Defendants’ have the Plaintiff’s records. These records have been given to the
Plaintiff’s union, breaching confidentiality. The Defendants have not provided
evidence of how the Plaintiff’s access to his personnel record would require the
Court protection or relief.
The Defendants have made no
claim that the Court can grant relief or protection.
The
Defendants have provided no evidence of how providing the Plaintiff a copy of
his personnel file would be a burden.
The Defendants are required
to provide employee personnel records and the HRD does this for hundreds of
employees. The HRD has provided the Plaintiff’s personnel record to at least
one third party.
No evidence has been
provided by the Defendants that providing the Plaintiff with his personnel
record would rise to the level of a “burden”
The
Plaintiff has proffered a settlement that would be the most efficient in terms
of Court resources.
The Plaintiff has proffered
the settlement that when the Defendants’ provided him with a copy of his
demands on the HRD, he would withdraw his suit. The Defendants’ refused the
proffer.
The Court Denial of the
Motion for Protective Order would effectively bring an end to the case.
The Plaintiff’s Request for
Documents asks for a copy of the Plaintiff’s personnel records from the HRD.
Should the Deny the
Defendants’ Motion for a Protective Order, the Defendants would be compelled by
Court rules for Discovery to provide to the Plaintiff his personnel record. The
Plaintiff has stated on record and the Defendants admit that there is no need
for the litigation to go further, once he receives his personnel records from
HRD. The Plaintiff would then withdraw his case.
The Court
allowing the Motion for Protective Order would harm the Plaintiff.
The Plaintiff is involved
in litigation regarding his wrongful termination from the Commonwealth. His
personnel record at the HRD could be dispositive in the litigation. A delay in
accessing his personnel record in the custody of the HRD could significantly
negatively impact his case.[4]
The Attorney General is the
defense counsel in the termination litigation and this instant case. It can be
inferred that this Motion for a Protective Order is a pretext. The Attorney
General has access to the Plaintiff’s personnel records at the HRD and
Plaintiff does not. This is basically unfair to the Plaintiff.
CONCLUSION
For the reasons stated in the arguments
the Plaintiff respectfully request the Court to Deny the Defendants’ Motion for
a Protective Order.
Respectfully submitted,
-----------------------
------------
Gordon
T. Davis
Date
Pro Se Plaintiff
[1] Defendants’
Motion for Protective Order page 2, line 4.
[2] Defendants’
Memo of Law for their Motion to Dismiss, page 3, par. 3, “the employee may seek
to have the information expunged including by judicial process…”
[3]
Defendants’ Motion for Protective Order page 5, last sentence
[4] Defendants’
Memo of Law for its Motion to Dismiss, page 4, line 2
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