MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	67	
Docket:	      Yor-17-191	
Submitted	
		On	Briefs:	 October	24,	2017	
Decided:	     May	8,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                             MARCEL	DUBOIS	et	al.	
                                      	
                                     v.	
                                      	
                    OFFICE	OF	THE	ATTORNEY	GENERAL	et	al.	
	
	
HJELM,	J.		

       [¶1]	 	 In	 an	 order	 entered	 in	 April	 of	 2017,	 the	 Superior	 Court	 (York	

County,	 O’Neil,	 J.)	 	 affirmed	 a	 decision	 of	 the	 Maine	 Office	 of	 the	 Attorney	

General	 denying	 a	 request	 made	 by	 Dubois	 Livestock,	 Inc.,	 pursuant	 to	 the	

Freedom	of	Access	Act,	1	M.R.S.	§§	400-414	(2017),	for	drafts	of	a	letter	sent	in	

January	 of	 2016	 by	 the	 Maine	 Department	 of	 Agriculture,	 Conservation	 and	

Forestry	(DACF)	to	Dubois	Livestock.		In	the	same	order,	the	court	determined	

that	the	Office	of	the	Attorney	General	 did	not	have	 just	and	proper	cause	to	

deny	Dubois	Livestock’s	FOAA	request	for	a	series	of	emails	preparatory	to	a	

meeting	 held	 among	 agents	 of	 several	 state	 agencies	 in	 connection	 with	

enforcement	efforts	against	Dubois	Livestock.			
2	

          [¶2]		Two	individuals	associated	with	Dubois	Livestock—Marcel	Dubois,	

and	 Sol	 Fedder,	 who	 submitted	 the	 FOAA	 request	 on	 behalf	 of	 Dubois	

Livestock—appeal	the	first	aspect	of	the	court’s	order,	which	we	affirm	because	

the	 drafts	 of	 the	 January	 2016	 letter	 constitute	 privileged	 work	 product	

material	not	subject	to	FOAA	disclosure.		The	Office	of	the	Attorney	General	and	

Assistant	Attorneys	General	Emily	K.	Green	and	Scott	Boak	(collectively,	OAG)	

cross-appeal	 from	 the	 latter	 part	 of	 the	 order,	 which	 we	 vacate	 because	 the	

emails	regarding	the	meeting	are	also	protected	as	work	product.			

                                               I.		BACKGROUND	

          [¶3]		The	following	facts	are	drawn	from	the	court’s	findings,	which	are	

supported	 by	 the	 record,	 and	 from	 assertions	 contained	 in	 OAG’s	 filings	 that	

Dubois	 and	 Fedder	 have	 not	 disputed.1	 	 See	 Dubois	 v.	 Dep’t	 of	 Envtl.	 Prot.,	

2017	ME	224,	¶	3,	174	A.3d	314.			




     1	 	 As	 is	 discussed	 in	 the	 text,	 OAG	 filed	 affidavits	 pursuant	 to	 the	 court’s	 order	 to	 support	 its	

position.		Dubois	and	Fedder	assert	that	the	affidavits	submitted	by	OAG	are	“incompetent”	because	
the	information	contained	in	them	is	not	based	on	personal	knowledge.		Dubois	and	Fedder	have	not	
developed	that	argument	on	appeal,	however,	and	so	it	is	waived.		See	Laqualia	v.	Laqualia,	2011	ME	
114,	 ¶	 34,	 30	 A.3d	 838.	 	 Further,	 Dubois	 and	 Fedder	 challenged	 only	 the	 process	 by	 which	 the	
information	 contained	 in	 the	 affidavits	 was	 presented	 to	 the	 court,	 so	 the	 information	 itself	 is	
undisputed.	 	 Finally,	 even	 if	 Dubois	 and	 Fedder	 are	 correct	 that	 the	 affidavits	 must	 be	 based	 on	
personal	knowledge,	the	affidavits	would	be	proper	because	their	contents	make	clear	that	they	are	
based	on	personal	knowledge.			
                                                                                            3	

       [¶4]		In	May	of	2015,	DACF	and	the	Maine	Department	of	Environmental	

Protection	began	to	receive	and	investigate	numerous	odor	complaints	relating	

to	Dubois	Livestock’s	business	operations,	which	include	producing	compost.		

Because	 the	 complaints	 generated	 both	 agricultural	 and	 environmental	

concerns,	 DACF	 and	 DEP	 conducted	 a	 coordinated	 investigation	 into	 these	

complaints.		During	that	effort,	DEP	and	DACF	were	represented	by	assistant	

attorneys	 general.	 	 On	 May	 8,	 2015,	 Michael	 Clark,	 a	 DEP	 project	 manager	

whose	 responsibilities	 encompass	 regulation	 of	 Dubois	 Livestock’s	 compost	

operations,	 requested	 information	 from	 Dubois	 Livestock	 about	 the	 material	

spread	 on	 its	 fields.	 	 Three	 days	 later,	 Dubois	 Livestock	 notified	 Clark	 that	 it	

intended	to	file	a	complaint	against	DEP	for	criminal	trespass	based	on	an	entry	

by	state	officials	onto	the	farm’s	premises.		After	receiving	this	letter,	Clark	met	

with	the	assistant	attorney	general	who	represented	DEP	to	discuss	obtaining	

an	 administrative	 inspection	 warrant	 to	 enter	 Dubois	 Livestock’s	 fields	 and	

facilities.		DEP	began	drafting	an	application	for	the	warrant	shortly	after	this	

meeting.	 	 On	 November	 20,	 2015,	 DEP	 filed	 an	 enforcement	 action	 against	

Dubois	Livestock.			

       [¶5]		As	for	DACF,	on	October	16,	2015,	DACF	Agricultural	Compliance	

Officer	 Matt	 Randall	 sent	 an	 email	 to	 Dubois	 Livestock	 also	 requesting	
4	

information	 about	 the	 materials	 spread	 on	 its	 fields.	 	 In	 response,	 Dubois	

Livestock	 notified	 DACF	 that	 it	 would	 not	 be	 “coerced	 or	 bullied	 into	

answering”	the	agency’s	questions	about	the	farming	operations.		At	that	point,	

DACF	 began	 to	 consider	 bringing	 its	 own	 action	 against	 Dubois	 Livestock	 to	

enforce	 agriculture	 laws	 based	 both	 on	 the	 underlying	 complaints	 and	 on	

Dubois	Livestock’s	refusal	to	cooperate	with	the	State’s	investigation.		During	

his	investigation,	Randall	became	aware	that	Dubois	had	threatened	to	bring	a	

criminal	trespass	action	against	DEP.		In	January	of	2016,	Randall,	on	behalf	of	

DACF,	 sent	 a	 letter	 to	 the	 directors	 and	 managers	 of	 the	 various	 Dubois	

Livestock	entities	explaining	that	legal	protections	against	nuisance	complaints	

were	 not	 available	 to	 the	 farms	 unless	 they	 cooperated	 with	 DACF’s	

investigation.		It	appears	from	OAG’s	briefs	filed	with	the	trial	court	and	on	this	

appeal	 that	 the	 January	 2016	 letter	 was	 the	 final	 product	 of	 the	 drafts	 that	

Dubois	and	Fedder	seek	to	obtain	in	this	action.			

      [¶6]		On	April	27,	2016,	OAG	received	a	FOAA	request	from	Sol	Fedder	as	

representative	of	Dubois	Livestock.		See	1	M.R.S.	§	408-A.		The	request	sought	

drafts	 of	 the	 January	 2016	 letter	 that	 Randall	 sent	 to	 Dubois	 Livestock	 and	

documents	pertaining	to	a	meeting	of	DEP,	DACF,	and	OAG	employees	held	on	
                                                                                                                   5	

December	 4,	 2015.2	 	 OAG	 denied	 the	 FOAA	 request	 in	 its	 entirety,	 see	 id.	

§	408-A(4),	 asserting	 that	 the	 records	 were	 prepared	 in	 anticipation	 of	

litigation	and	were	therefore	protected	 as	work	product	not	subject	to	FOAA	

disclosure,	see	id.	§	402(3)(b).			

         [¶7]		Dubois	and	Fedder	challenged	OAG’s	denial	of	the	FOAA	request	in	

an	action	filed	in	the	Superior	Court.3		See	1	M.R.S.	§	409.		On	motion	filed	by	

OAG,	the	court	issued	a	scheduling	order	directing	OAG	to	submit	the	contested	

documents	under	seal	for	the	court’s	in	camera	review	and	to	file	with	the	court,	

with	a	copy	to	Dubois	and	Fedder,	an	exceptions	log	identifying	the	documents	

and	the	reasons	they	were	withheld.		The	scheduling	order	also	permitted	OAG	



   2		Apparently,	Dubois	learned	of	the	December	4,	2015,	meeting	from	documents	inadvertently	

disclosed	by	DACF	to	Dubois	Livestock	pursuant	to	a	separate	FOAA	request.		In	its	April	29	letter,	
OAG	 notified	 Dubois	 Livestock	 that	 the	 inadvertently	 disclosed	 documents	 were	 privileged	 work	
product	and	requested	that	it	“return	or	discard	all	copies.”			
   3		Although	Dubois	and	Fedder	styled	their	complaint	in	part	as	an	appeal	from	agency	action	filed	

pursuant	to	Maine	Rule	of	Civil	Procedure	80B	(which,	because	the	challenge	is	to	a	decision	of	a	state	
agency,	would	be	governed	by	Rule	80C),	that	Rule	does	not	govern	this	action.		See	M.R.	Civ.	P.	80B,	
80C;	1	M.R.S.	§	409	(2017).		As	presently	constituted,	1	M.R.S.	§	409(1)	creates	a	procedure	for	a	party	
aggrieved	 by	 the	 denial	 of	 a	FOAA	 request	 to	 file	 an	 “appeal”	 in	the	 Superior	 Court.	 	 See	 id.	 	 That	
statute,	 however,	 authorizes	 the	 court	 to	 take	 testimony	 and	 other	 evidence	 as	 the	 court	 deems	
necessary	in	order	to	resolve	any	disputed	facts	and	adjudicate	whether	the	denial	was	proper.		See	
id.;	Dubois	v.	Dep’t	of	Envtl.	Prot.,	2017	ME	224,	¶	10,	174	A.3d	314.		Similarly,	the	prior	version	of	
section	409(1)	specified	that	the	court	was	to	conduct	a	“trial	de	novo,”	see	1	M.R.S.	§	409(1)	(2014)	
(amended	by	P.L.	2015,	c.	249,	§	2	(effective	Oct.	15,	2015)),	a	process	that	is	not	appellate	in	nature	
or	 function,	 see	 Underwood	 v.	 City	 of	 Presque	 Isle,	1998	 ME	 166,	 ¶	 22,	 715	 A.2d	 148.	 	 Neither	 the	
current	procedural	framework	nor	the	one	it	replaced	call	for	the	court	to	act	in	an	appellate	capacity	
because	 both	 versions	 of	 the	 statute	 contemplate	 that	 the	 court	 will	 take	 evidence	 and	 act	 in	 a	
fact-finding	role.		See	1	M.R.S.	§	409(1);	1	M.R.S.	§	409(1)	(2014)	(repealed	by	P.L.	2015,	c.	249,	§	2	
(effective	Oct.	15,	2015)).			
6	

to	 file	 with	 the	 court,	 again	 with	 a	 copy	 to	 Dubois	 and	 Fedder,	 an	 affidavit	

explaining	its	decision	to	withhold	the	documents	at	issue.		The	order	allowed	

Dubois	and	Fedder	to	then	file	“supporting	materials”	and	established	a	briefing	

schedule.		With	its	brief,	OAG	filed	affidavits	executed	by	Randall	and	another	

DEP	official.		Dubois	and	Fedder	filed	a	brief	containing	arguments	of	law,	but	

they	did	not	submit	their	own	affidavits	or	any	other	material.			

         [¶8]	 	 The	 court	 conducted	 an	 in	 camera	 review	 of	 the	 documents	

submitted	by	OAG	and	held	oral	argument.		In	April	of	2017,	the	court	issued	an	

order	concluding	that	the	drafts	of	the	letter	sent	by	DACF	to	Dubois	Livestock	

were	not	subject	to	disclosure	pursuant	to	FOAA	because	they	were	created	in	

anticipation	of	litigation	and	therefore	 protected	as	work	product	containing	

mental	 impressions,	 conclusions,	 and	 legal	 theories.	 	 The	 court	 determined,	

however,	 that	 the	 emails	 concerning	 the	 December	 4,	 2015,	 meeting	 among	

DEP	 and	 DACF	 agents	 and	 assistant	 attorneys	 general	 representing	 those	

agencies	were	not	privileged	and	ordered	OAG	to	produce	those	emails.		Dubois	

appealed,	and	OAG	cross-appealed.		See	M.R.	App.	P.	2(b)(3)	(Tower	2016).4	




     4		This	appeal	was	filed	before	September	1,	2017;	therefore,	the	restyled	Maine	Rules	of	Appellate	

Procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled	Rules).			
                                                                                                              7	

                                            II.		DISCUSSION	

	       [¶9]		Dubois	and	Fedder	raise	challenges	to	the	process	used	by	the	court,	

which	we	address	before	proceeding	to	the	merits	of	the	parties’	appeals.			

A.	     Due	Process	

	       [¶10]		Dubois	and	Fedder	argue	that	the	trial	court	violated	their	right	to	

due	process	by	declining	to	order	OAG	to	produce	an	exceptions	log	that	is	more	

detailed	than	what	was	already	provided	pursuant	to	the	scheduling	order	and	

by	relying	on	the	two	affidavits	submitted	by	OAG	as	the	basis	for	the	court’s	

factual	findings.5			

        [¶11]		We	review	due	 process	claims	de	novo.		State	v.	Jones,	2012	 ME	

126,	 ¶	 35,	 55	 A.3d	 432.	 	 “Due	 process	 is	 a	 flexible	 concept”	 analyzed	 on	 a	

case-by-case	 basis.	 	 Bog	 Lake	 Co.	 v.	 Town	 of	 Northfield,	 2008	 ME	 37,	 ¶	 10,	

942	A.2d	700	(quotation	marks	omitted).		The	two	essential	elements	of	due	

process	are	notice	and	the	opportunity	to	be	heard.		Portland	Pipe	Line	Corp.	v.	

Envtl.	Improvement	Comm’n,	307	A.2d	1,	15	(Me.	1973).			




   5		Dubois	and	Fedder	also	assert	that	they	were	entitled	to	see	the	documents	reviewed	by	the	

court	in	camera	so	that	they	could	be	heard	on	whether	the	documents	should	be	disclosed	to	them.		
We	 have	 recently	 rejected	 this	 internally	 fallacious	 argument	 in	a	 case	 also	 involving	 Dubois	 and	
Fedder,	 see	Dubois	 v.	 Dep’t	 of	 Envtl.	Prot.,	 2017	ME	 224,	 ¶	 9,	 174	 A.3d	314,	 and	do	 not	address	 it	
further	here.	
8	

      1.	    Exceptions	Log	

	     [¶12]	 	 Pursuant	 to	 FOAA,	 a	 person	 or	 agency	 that	 refuses	 access	 to	 a	

public	record	is	required,	within	five	business	days	after	receiving	the	request,	

to	provide	the	requesting	party	with	“written	notice	of	the	denial,	stating	the	

reason	for	the	denial	.	.	.	.”		1	M.R.S.	§	408-A(4).		Additionally,	in	this	particular	

proceeding	 the	 court	 ordered	 OAG	 to	 file	 an	 “Exceptions	 Log	 itemizing	 the	

documents	at	issue	and	the	reason(s)	they	were	withheld.”		OAG	complied	with	

the	 requirements	 of	 both	 the	 statute	 and	 the	 order.	 	 Dubois	 and	 Fedder’s	

reliance	on	the	more	extensive	exceptions	log	requirements	created	in	Maine	

Rule	of	Civil	Procedure	26(b)(5)(A)	is	misplaced,	because	neither	FOAA	nor	the	

court’s	 scheduling	 order	 incorporates	 that	 Rule’s	 procedure	 for	 pretrial	

discovery.		See	1	M.R.S.	§§	400-414.		The	exceptions	log	provided	to	Dubois	and	

Fedder	 was	 sufficient	 to	 provide	 them	 with	 information	 necessary	 to	 assert	

their	rights	pursuant	to	FOAA,	and	the	court	did	not	deprive	Dubois	and	Fedder	

of	 their	 due	 process	 rights	 when	 it	 declined	 to	 order	 OAG	 to	 submit	 a	 more	

detailed	exceptions	log.			

      2.	    Affidavits	

      [¶13]	 	 FOAA	 provides	 that	 in	 a	 Superior	 Court	 proceeding	 involving	 a	

challenge	to	a	denial	of	a	request	for	access	to	public	documents,	the	court	may	
                                                                                                      9	

conduct	“a	review,	with	taking	of	testimony	and	other	evidence	as	determined	

necessary”	to	determine	whether	the	denial	“was	not	for	just	and	proper	cause.”		

1	M.R.S.	§	409(1).		This	authorizes	the	court	to	establish	the	procedure	it	deems	

necessary	 for	 the	 presentation	 of	 evidence	 that	 will	 bear	 on	 its	 ultimate	

determination	and	allows	the	court	to	specify	the	process	it	will	use	to	resolve	

disputed	 facts,	 “giving	 due	 consideration	 to	 the	 efficacy,	 costs,	 and	 time	

required	for	each	method	of	presentation	of	evidence.”		See	Dubois	v.	Dept.	of	

Envtl.	Prot.,	2017	ME	224,	¶	10,	174	A.3d	314.6	

	       [¶14]		Exercising	that	statutory	authority,	the	court	provided	OAG	with	

the	opportunity	to	file	affidavits	relating	to	its	refusal	to	disclose	the	requested	

documents.		Although	it	did	not	explicitly	specify	that	Dubois	and	Fedder	could	

do	the	same,	in	the	same	order	the	court	provided	them	with	an	opportunity	to	

file	“their	brief	and	any	supporting	materials.”		(Emphasis	added.)		Both	parties	

were	 therefore	 effectively	 given	 the	 same	 opportunity	 to	 submit	 evidence.		

Nonetheless,	Dubois	and	Fedder	did	not	submit	any	supporting	materials	but	

rather	 limited	 their	 filings	 to	 legal	 argument.	 	 The	 order	 issued	 by	 the	 court	

reveals	that	it	fully	considered	the	evidence	submitted	by	the	parties	and	their	


    6		This	constitutes	a	shift	from	the	requirement	of	a	trial	de	novo	prescribed	by	an	earlier	version	

of	section	409(1).		See	supra	n.3.		We	have	described	the	statutory	change	as	creating	an	“improved	
evidentiary	process.”		Dubois	v.	Dep’t	of	Envtl.	Prot.,	2017	ME	224,	¶	11,	174	A.3d	314.	
10	

legal	arguments.		The	procedural	course	of	the	case	was	well	within	the	court’s	

statutory	authority	and	did	not	constitute	an	abuse	of	discretion,	see	Dubois	v.	

Dep’t	of	Envtl.	Prot.,	2017	ME	224,	¶	10,	174	A.3d	314,	and	Dubois	and	Fedder	

were	not	denied	an	opportunity	to	be	heard.		

B.	   Work	Product	Privilege	

	     [¶15]		We	now	address	the	merits	of	the	parties’	respective	challenges	to	

the	 court’s	 determinations	 that	 the	 drafts	 of	 the	 January	 2016	 letter	 are	 not	

subject	to	FOAA	disclosure	because	they	are	work	product,	and	that	the	emails	

sent	in	preparation	for	the	December	2015	meeting	are	not	work	product	and	

thus	not	protected.		“In	reviewing	whether	a	government	entity	complied	with	

the	FOAA,	we	review	factual	findings	for	clear	error,	but	review	the	trial	court’s	

interpretation	of	the	FOAA	de	novo.”		Hughes	Bros.,	Inc.	v.	Town	of	Eddington,	

2016	ME	13,	¶	21,	130	A.3d	978	(citations	omitted).				

      [¶16]	 	 Pursuant	 to	 FOAA,	 “[t]he	 burden	 of	 proof	 is	 on	 the	 agency	 or	

political	subdivision	from	which	the	information	is	sought	to	establish	just	and	

proper	cause	for	the	denial	of	a	FOAA	request.”		MaineToday	Media,	Inc.	v.	State,	

2013	ME	 100,	 ¶	9,	 82	 A.3d	 104	 (alterations	 omitted)	 (quotation	 marks	

omitted);	see	1	M.R.S.	§	409(1).		Courts	must	give	FOAA	liberal	construction	and	

application,	 and	 “[s]tatutory	 exceptions	 to	 the	 FOAA	 are	 to	 be	 strictly	
                                                                                          11	

construed.”		Preti	Flaherty	Beliveau	&	Pachios	LLP	v.	State	Tax	Assessor,	2014	ME	

6,	¶	10,	86	A.3d	30.	

       [¶17]		The	starting	point	for	the	FOAA	analysis	is	the	statutory	principle	

that	a	person	has	the	 right	to	inspect	and	copy	“any	public	record.”		1	 M.R.S.	

§	408-A(1).	 	 As	 pertinent	 to	 this	 case,	 “public	 record”	 includes	 any	 matter	 in	

tangible	 or	 electronic	 form	 “that	 is	 in	 the	 possession	 or	 custody	 of	 [a	 State]	

agency	 or	 public	 official	 .	 .	 .	 and	 [that	 was]	 received	 or	 prepared	 for	 use	 in	

connection	with	the	transaction	of	public	or	governmental	business	or	contains	

information	 relating	 to	 the	 transaction	 of	 public	 or	 governmental	 business.”		

See	1	M.R.S.	§	402(3).		The	definition	of	“public	record,”	however,	is	subject	to	a	

number	of	exceptions,	one	of	which	is	central	to	this	case:	“[r]ecords	that	would	

be	within	the	scope	of	a	privilege	against	discovery	or	use	as	evidence	recognized	

by	the	courts	of	this	State	in	civil	or	criminal	trials	if	the	records	or	inspection	

thereof	 were	 sought	 in	 the	 course	 of	 a	 court	 proceeding.”	 	 Id.	 §	402(3)(B)	

(emphasis	added).	

       [¶18]		This	exception	encompasses	the	work	product	privilege.		Pursuant	

to	 Maine	 Rule	 of	 Civil	 Procedure	 26(b)(3),	 “a	 party	 may	 obtain	 discovery	 of	

documents	 .	 .	 .	 	 prepared	 in	 anticipation	 of	 litigation”	 but	 only	 if	 the	 party	

demonstrates	that	it	has	a	“substantial	need”	for	the	documents	to	prepare	its	
12	

case	and	cannot	obtain	the	“substantial	equivalent”	of	such	documents	without	

“undue	hardship.”		Even	where	a	party	can	make	this	showing,	the	requesting	

party	is	not	entitled	to	records	that	contain	an	attorney’s	mental	impressions,	

conclusions,	 opinions,	 or	 legal	 theories	 concerning	 the	 litigation.7	 	 Id.;	

Springfield	Terminal	Ry.	Co.	v.	Dep’t	of	Transp.,	2000	ME	126,	¶	13,	754	A.2d	353.		

“A	document	is	protected	as	work	product	only	if	it	was	created	because	of	the	

party’s	subjective	anticipation	of	future	litigation[,]”	which	must	be	“objectively	

reasonable.”		Id.	¶	16	(quotation	marks	omitted).		“[A]	document	prepared	in	

the	 regular	 course	 of	 business	 may	 be	 prepared	 in	 anticipation	 of	 litigation	

when	the	party’s	business	is	to	prepare	for	litigation.”		Harriman	v.	Maddocks,	

518	 A.2d	 1027,	 1034	 (Me.	 1986)	 (quotation	 marks	 omitted).	 	 As	 we	 have	

recently	held,	documents	“prepared	in	anticipation	of	regulatory	enforcement	

or	 other	 compliance-related	 litigation”	 constitute	 a	 form	 of	 work	 product.		

Dubois	v.	Dep’t	of	Envtl.	Prot.,	2017	ME	224,	¶	17,	174	A.3d	314.	




   7		While	it	is	clear	that	Dubois	and	Fedder	contend	that	the	material	at	issue	is	not	work	product	

in	the	first	place,	it	is	less	clear	that	they	are	also	contending	that	if	that	material	is	work	product,	
they	 are	 nonetheless	 entitled	 to	 its	 access	 because	 of	 the	 conditional	 nature	 of	 the	 work	 product	
privilege	 as	 noted	 in	the	 text.	 	 We	 nonetheless	 address	 that	 issue	 to	 round	 out	 the	 work	 product	
analysis.	
                                                                                   13	

      1.     Drafts	of	January	2016	DACF	Letter		

      [¶19]		Dubois	and	Fedder	assert	that	the	court	erred	by	concluding	that	

the	 work	 product	 privilege	 shielded	 from	 FOAA	 disclosure	 the	 drafts	 of	 the	

letter	that,	in	final	form,	DACF	sent	to	Dubois	Livestock	in	January	of	2016.		The	

drafts	were	circulated	for	review	and	comment	among	several	DEP	and	DACF	

employees	and	the	assistant	attorneys	general	who	represented	those	agencies	

in	connection	with	the	investigations	into	Dubois	Livestock.			

      [¶20]		The	contents	of	the	drafts,	which	remain	sealed	pursuant	to	the	

court’s	order,	plainly	demonstrate	that	both	the	drafts	and	the	resulting	final	

version	of	the	letter	were	created	in	anticipation	of	litigation	and	that	the	drafts	

are	fully	protected	from	FOAA	access	because	they	contain	attorneys’	mental	

impressions,	 conclusions,	 opinions,	 or	 legal	 theories	 concerning	 the	

prospective	litigation.		

      [¶21]		As	the	court	found,	with	support	in	the	record,	DACF	reasonably	

anticipated	litigation	with	Dubois	Livestock	as	early	as	May	of	2015,	and	that	

anticipation	 continued	 throughout	 the	 time	 the	 letter—which	 concerned	 the	

matters	being	investigated—was	being	drafted.		Given	these	circumstances,	the	

court	 did	 not	 err	 when	 it	 concluded	 that	 the	 drafts	 comprised	 work	 product	
14	

material	 and	 were	 not	 subject	 to	 any	 exception	 to	 that	 privilege.	 	 See	 M.R.	

Civ.	P.	26(b)(3).			

         [¶22]		Dubois	and	Fedder	argue	that	any	anticipation	of	litigation	was	not	

reasonable	because	DACF	had	not	completed	the	procedural	steps	necessary	to	

bring	an	enforcement	action.		As	a	predicate	to	concluding	an	investigation	into	

a	complaint	involving	a	farm,	DACF’s	administrative	rules	require	the	agency	to	

make	 a	 determination	 and	 render	 findings	 and	 any	 recommendations	

prescribing	 best	 management	 practices,	 and	 in	 some	 situations	 the	

Commissioner	is	required	to	send	a	written	report	to	the	Attorney	General.		See	

1	C.M.R.	01	001	010-3	§	3(5)	(2007);	7	M.R.S.	§	158	(2017).		Even	though	those	

regulatory	steps	had	not	yet	been	completed	when	Randall	sent	the	letter,	the	

circumstances	 demonstrate	 that	 the	 letter	 was	 drafted	 when	 there	 existed	 a	

reasonable	anticipation	that	litigation	would	occur.		See	Springfield	Terminal,	

2000	ME	126,	¶	16,	754	A.2d	353.		

	        [¶23]		Dubois	and	Fedder	also	argue	that	the	work	product	privilege	was	

waived	 because	 DACF	 collaborated	 on	 the	 drafts	 with	 DEP	 employees	 and	

assistant	 attorneys	 general	 representing	 DEP.8	 	 A	 party	 waives	 the	 work	




    8	 	 As	 part	 of	 their	 argument	 that	 OAG	 waived	any	privilege,	 Dubois	 and	 Fedder	 claim	 that	 the	

administrative	enforcement	efforts	constituted	the	federal	crime	of	obstruction	of	justice	and	that	
                                                                                                            15	

product	 protection	 by	 disclosing	 the	 material	 “in	 a	 way	 inconsistent	 with	

keeping	 it	 from	 an	 adversary.”	 	 U.S.	 v.	 Mass.	 Inst.	 of	 Tech.,	 129	F.3d	 681,	 687	

(1st	Cir.	 1997).	 	 Here,	 as	 the	 court	 found,	 DACF	 and	 DEP	 coordinated	 their	

investigations	into	Dubois	Livestock’s	operations	because	the	two	agencies	had	

overlapping	 regulatory	 and	 enforcement	 interests.	 	 They	 coordinated	 their	

efforts	in	consultation	with	their	attorneys,	and	OAG	did	not	disclose	the	drafts	

of	 the	 letter	 in	 a	 way	 that	 would	 expose	 that	 material	 to	 an	 adversary.		

Therefore,	neither	DACF	nor	its	attorneys	waived	the	work	product	privilege	

by	consulting	with	DEP	and	its	attorneys.		See	id.		

        2.		     Scheduling	Emails		

        [¶24]		OAG	argues	that	the	work	product	privilege	also	applies	to	a	series	

of	 emails	 that	 involved	 planning	 for	 a	 strategy	 meeting	 held	 on	 December	 4,	

2015,	and	that	the	court	erred	by	concluding	otherwise.		We	agree.		

        [¶25]		The	court	found	that	the	emails	were	not	work	product	because	

they	“merely	contain	correspondence	.	.	.	about	the	scheduling	of	a	meeting.”		

The	emails,	however,	were	written	and	circulated	to	schedule	a	meeting	that	

was	to	be	held	because	of	the	prospect	of	litigation	reasonably	anticipated	by	



the	 internal	 information	 is	 therefore	 not	 protected.	 	 See	 18	 U.S.C.S.	 §	 1503	 (LEXIS	 through	 Pub.	
L.	No.	115-164).		On	the	record	before	us,	this	argument	is	entirely	without	merit.			
16	

the	agencies	and	their	attorneys.		The	emails	reveal	the	purpose	of	the	meeting	

and	 the	 efforts	 made	 to	 accommodate	 the	 schedules	 of	 people	 who	 were	 to	

attend	the	meeting,	which	by	itself	points	to	the	nature	of	issues	and	strategies	

that	likely	would	be	considered.		Additionally,	several	of	the	emails	explicitly	

discuss	 DACF’s	 investigative	 and	 legal	 options.	 	 Therefore,	 the	 scheduling	

emails	are	privileged	as	work	product.		Springfield	Terminal,	2000	ME	126,	¶	17,	

754	 A.2d	 353.	 	 We	 accordingly	 vacate	 the	 judgment	 as	 to	 these	 emails	 and	

remand	for	entry	of	judgment	that	the	emails	are	work	product	and	not	subject	

to	disclosure	pursuant	to	FOAA.			

C.	   Conclusion	

      [¶26]	 	 Because	 the	 documents	 at	 issue	 in	 this	 case	 are	 protected	 work	

product	material,	they	are	not	“public	records”	within	the	meaning	of	section	

402(3),	and	OAG’s	denial	of	the	request	to	inspect	or	copy	those	documents	was	

therefore	“just	and	proper.”		See	1	M.R.S.	§	409(1).			

      The	entry	is:	
                  Judgment	 affirmed	 as	 to	 the	 draft	 letters	
                  (documents	 1-20).	 	 Judgment	 vacated	 as	 to	 the	
                  emails	(documents	21-31).		Remanded	for	entry	
                  of	 judgment	 denying	 the	 plaintiffs’	 request	 for	
                  disclosure	of	those	documents.		
	
	     	      	      	     	      	
	
	                         	
                                                                                    17	

Marcel	Dubois	and	Sol	Fedder,	appellants	pro	se	

Janet	T.	Mills,	Attorney	General,	and	Thomas	A.	Knowlton,	Asst.	Atty.	Gen.,	Office	
of	 the	 Attorney	 General,	 Augusta,	 for	 cross-appellants	 Office	 of	 the	 Attorney	
General,	Emily	K.	Green,	and	Scott	Boak	
	
	
York	County	Superior	Court	docket	number	AP-2016-21	
FOR	CLERK	REFERENCE	ONLY	
