Terrence E. Pinkham v. Department of Transportation

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 74
Docket: Han-15-95
Submitted
On Briefs: October 21, 2015
Argued: April 6, 2016
Decided: May 19, 2016

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.

TERRENCE E. PINKHAM

v.

DEPARTMENT OF TRANSPORTATION

GORMAN, J.

[¶1] Terrence E. Pinkham appeals from a judgment entered by the Superior

Court (Hancock County, R. Murray, J.) after a jury trial, awarding him $41,500 as

just compensation for the Maine Department of Transportation’s (the MDOT)

taking of a portion of his property by eminent domain for a road improvement

project.1 Pinkham contends that the court erred by ruling that the MDOT was not

required to provide in discovery those portions of its appraiser’s report appraising

other properties taken for the project pursuant to 23 M.R.S. § 63 (2015). We

agree, and vacate the judgment.

1
Amicus curiae briefs were filed by the Maine Turnpike Authority, the Maine Freedom of
Information Coalition and New England First Amendment Coalition, and the Maine Trial Lawyers
Association and American Civil Liberties Union of Maine Foundation.
2

I. BACKGROUND

[¶2] Viewing the evidence in the light most favorable to Pinkham, as the

prevailing party, the jury rationally could have found the following facts.

See Caruso v. Jackson Lab., 2014 ME 101, ¶ 2, 98 A.3d 221. By notice provided

in May of 2009, and amended in July of 2010, the MDOT informed Pinkham that

it was taking by eminent domain a portion of Pinkham’s property abutting

Route 1A in Ellsworth in order to widen the road. See 23 M.R.S. § 153-B (2015).

The taking included a seventeen-foot-wide strip of land running alongside the

highway, together with associated drainage easements.

[¶3] The MDOT had the property appraised by Michael Moniz, a certified

real estate appraiser. See 23 M.R.S. § 153-B(2). The MDOT provided Pinkham

with a copy of those portions of Moniz’s appraisal report that applied to Pinkham’s

property, and then made Pinkham an offer of “just compensation” for the taking as

required by 23 M.R.S. § 155 (2015). After Pinkham rejected the offer, the matter

was referred to the State Claims Commission. See 23 M.R.S. §§ 155, 156 (2015).

Ultimately, the MDOT paid Pinkham a total of $13,609 for the taking.

[¶4] In December of 2012, Pinkham challenged the Commission’s decision

by filing a complaint in the Superior Court for de novo review of the matter.2

2
Pinkham also filed an eight-count complaint alleging that the MDOT directed water onto Pinkham’s
property, causing damage. The jury found in favor of MDOT on that complaint, and Pinkham does not
challenge the judgment entered on that portion of the verdict.
 3

See 23 M.R.S. § 157 (2015). Soon after, Pinkham requested that the MDOT

produce copies of Moniz’s appraisals of all of the properties acquired as part of the

widening project. The MDOT objected on the ground that “the information

concerning the negotiations for and appraisals of property acquired” for the

widening project was confidential pursuant to 23 M.R.S. § 63. After a hearing, the

court (A. Murray, J.) ordered that the MDOT was “protected from producing any

assessments, appraisals, [and] settlement/transaction documents relating to the

project in question” pursuant to section 63 because the widening project had not

yet been completed.

[¶5] The court conducted a jury trial on November 5 to 7, 2014. Pinkham

testified that he suffered a loss in value to his property of $1,375,000 as a result of

the taking. Moniz was designated as the MDOT’s expert witness to testify about

“the value of the property rights acquired from [Pinkham]”; over Pinkham’s

objection, Moniz testified that Pinkham’s property lost $13,000 in value as a result

of the taking. The parties stipulated, and the jury was informed, that the MDOT

had previously paid Pinkham $13,600. The jury returned a unanimous verdict

awarding Pinkham $41,500 as just compensation for the taking. The court entered
4

a judgment on the verdict, which it later amended to offset the damages amount by

the $13,600 the MDOT had already paid Pinkham. Pinkham appeals.3

II. DISCUSSION

A. Confidentiality and Privilege

[¶6] Pinkham contends that the trial court erred by ruling that Moniz’s

appraisal report, except as it pertained to Pinkham’s property, was confidential

pursuant to 23 M.R.S. § 63. We examine section 63 by first evaluating its plain

language. See Semian v. Ledgemere Transp., Inc., 2014 ME 141, ¶ 8,

106 A.3d 405. If that plain language is unambiguous, we afford the provision that

plain meaning; if the statute is ambiguous, we will look beyond its plain language

to other indicia of the Legislature’s intent in enacting it, including its legislative

history. Id.

[¶7] The MDOT, as well as the Maine Turnpike Authority, encourage us to

consider the statute with deference to the MDOT’s interpretation. If a statute is

ambiguous, we afford deference to an agency’s interpretation of a statute it

administers when the issue is a matter within that agency’s expertise. Davric Me.

Corp. v. Me. Dep’t of Transp., 606 A.2d 201, 203 n.3 (Me. 1992). In evaluating

23 M.R.S. § 63 in this matter, however, we must consider notions of discovery;
3
Although the Superior Court’s judgment was in Pinkham’s favor, Pinkham has standing to challenge
the judgment because the amount of the judgment is considerably less than that sought by Pinkham, and
the judgment therefore did not afford him all of the relief requested in his pleadings. See Sevigny v. Home
Builders Ass’n of Me., 429 A.2d 197, 201 (Me. 1981).
 5

privilege; and the intersection of section 63 with the Freedom of Access Act,

1 M.R.S. §§ 400-414 (2015). These are not areas within the MDOT’s expertise,

and therefore we do not afford deference to the MDOT’s interpretation on these

points. See Guilford Transp. Indus. v. Pub. Utils. Comm’n, 2000 ME 31, ¶ 10,

746 A.2d 910 (“[W]hen the legal issue decided by the agency is an issue in which

the courts have particular competence, there is no reason for the court to defer to

the agency.”).

[¶8] Section 63 provides in its entirety as follows:

§ 63. Confidentiality of records held by the [MDOT] and the
Maine Turnpike Authority

1. Confidential records. The following records in the
possession of the [MDOT] and the Maine Turnpike Authority are
confidential and may not be disclosed, except as provided in this
section:

A. Records and correspondence relating to negotiations for and
appraisals of property; and

B. Records and data relating to engineering estimates of costs
on projects to be put out to bid.

2. Engineering estimates. Engineering estimates of total
project costs are public records after the execution of project
contracts.

3. Records relating to negotiations and appraisals. The
records and correspondence relating to negotiations for and appraisals
of property are public records beginning 9 months after the
completion date of the project according to the record of the [MDOT]
or Maine Turnpike Authority, except that records of claims that have
6

been appealed to the Superior Court are public records following the
award of the court.

23 M.R.S. § 63. Section 63 therefore deems certain of the MDOT’s records

“confidential” and sets out when that confidentiality is no longer in place.4

23 M.R.S. § 63.

[¶9] Although section 63 does not define “confidentiality” or specify its

scope, the Legislature has already defined confidentiality for purposes of all Maine

statutes—in Maine’s Freedom of Access Act (FOAA), 1 M.R.S. §§ 400-414.

FOAA was enacted in service of the public’s interest in holding its government

accountable by requiring that “public actions be taken openly.” MaineToday

Media, Inc. v. State, 2013 ME 100, ¶ 8, 82 A.3d 104 (quotation marks omitted);

see 1 M.R.S. § 401. To that end, FOAA sets out the general rule as to documents

that “[e]xcept as otherwise provided by statute, a person has the right to inspect

and copy any public record in accordance with this section within a reasonable

4
The record suggests—and the MDOT does not dispute—that construction on the widening project
was complete in 2011. Despite that completion, however, Pinkham does not contend on appeal that the
information he seeks is no longer confidential because the project has been complete for nine months or
more. Thus, we do not address the timeliness of the MDOT’s assertion of confidentiality. See Estate of
Hoch v. Stifel, 2011 ME 24, ¶ 38, 16 A.3d 137 (noting that “issues not raised or briefed on appeal are
deemed abandoned or unpreserved”). Nevertheless, we note that the MDOT’s position at oral argument
was that a project is not complete as long as any litigation relating to the project remains pending. The
MDOT’s interpretation would preclude any person from being the beneficiary of such information for as
long as it takes to resolve any single party’s challenge to a determination of just compensation. Although
we have been deferential to the MDOT’s determinations of when a project is complete, see Davric Me.
Corp. v. Me. Dep’t of Transp., 606 A.2d 201, 203 & n.3 (Me. 1992), the MDOT’s argument effectively
allows it to maintain the confidentiality of records for as long as a party would care to see them. As we
noted in Davric, “[t]he language of the statute evidences an intent to protect the Department’s bargaining
position during its negotiations with property owners.” Id. at 203. The negotiations with Pinkham ended
long before this litigation.
 7

time of making the request to inspect or copy the public record.”5 1 M.R.S.

§ 408-A. Excepted from the definition of “public records” is a list of twenty-two

types of materials to which the general disclosure requirements of FOAA do not

apply. 1 M.R.S. § 402(3)(A)-(U); see Guy Gannett Publ’g Co. v. Univ. of Me.,

555 A.2d 470, 471 (Me. 1989) (stating, pursuant to 1 M.R.S. § 401, that FOAA

“should be liberally construed and applied to promote its underlying purpose” of

open government, and that exceptions to public disclosure must be strictly

construed (quotation marks omitted)); Wiggins v. McDevitt, 473 A.2d 420, 422

(Me. 1984) (“It is apparent that the legislature sought to avoid uncertainty by

enacting a very broad, all-encompassing definition [of ‘public records’] subject

only to specific exceptions. . . . It leaves little room for qualification or

restriction.”).

[¶10] Among the exceptions to the definition of “public records,” and

therefore not subject to public disclosure despite otherwise meeting the definition

5
FOAA broadly defines “public records” as

any written, printed or graphic matter or any mechanical or electronic data compilation
from which information can be obtained, directly or after translation into a form
susceptible of visual or aural comprehension, that is in the possession or custody of an
agency or public official of this State or any of its political subdivisions, or is in the
possession or custody of an association, the membership of which is composed
exclusively of one or more of any of these entities, and has been 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.

1 M.R.S. § 402(3) (2015). There can be no dispute that the MDOT’s records—and specifically, Moniz’s
complete appraisal report—meet these requirements of a public record.
8

of “public records,” are “[r]ecords that have been designated confidential by

statute.” 1 M.R.S. § 402(3)(A) (emphasis added). FOAA defines confidentiality

by explaining, “‘Public records exception’ or ‘exception’ means a provision in a

statute or a proposed statute that declares a record or a category of records to be

confidential or otherwise not a public record for purposes of subchapter 1.”

1 M.R.S. § 431(1) (2015). Likewise, in section 63, the Legislature has used

“public records” when referring to the time at which the information at issue is no

longer “confidential.” 23 M.R.S. § 63(2) (providing that engineering estimates

“are public records after the execution of project contracts”); 23 M.R.S. § 63(3)

(stating that negotiation and appraisal documents become “public records

beginning 9 months after the completion date of the project according to the record

of the [MDOT]” or, for “records of claims that have been appealed to the Superior

Court,” the information constitutes “public records following the award of the

court”). Section 63’s provision of confidentiality means that—during the limited

periods of time for which section 63 provides—the MDOT is not required to

disclose the information at issue in response to a FOAA request.

[¶11] Pinkham’s request for the production of Moniz’s entire appraisal

report was not pursuant to FOAA, however, and therefore the provision of

confidentiality in section 63 provides no basis to preclude disclosure of the
 9

information to Pinkham. Instead, Pinkham seeks the information as discovery in

the context of this litigation.

[¶12] Whereas FOAA governs the disclosure of non-confidential public

information, discovery regards the disclosure of information—which may be

confidential—within the closed universe of litigation. The Maine Rules of Civil

Procedure are intended to “secure the just, speedy and inexpensive determination

of every action.” M.R. Civ. P. 1. To that end, liberal discovery is encouraged as a

means to “eliminate the sporting theory of justice and to enforce full disclosure

between the parties.” St. Paul Ins. Co. v. Hayes, 2001 ME 71, ¶ 8, 770 A.2d 611

(quotation marks omitted).

[¶13] Notwithstanding these broad purposes, discovery is not a limitless

mechanism to obtain information. It is constrained by principles of relevance and

privilege, of which the court is the final arbiter. Pursuant to M.R. Civ. P. 26(b)(1),

“Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action, whether it relates to

the claim or defense of the party seeking discovery or to the claim or defense of

any other party . . . .” Relevant information is information that “has any tendency

to make a fact more or less probable than it would be without the evidence” and is

“of consequence in determining the action.” M.R. Evid. 401. Privileged

information is information that, although it may be relevant, is deemed neither
10

discoverable nor admissible at trial. “Rules of privilege are designed to keep out

some portion of the truth in order to foster relationships that as a matter of social

policy are deemed to deserve protection.” Field & Murray, Maine Evidence

§ 501.1 at 206 (6th ed. 2007); see M.R. Evid. 501; Burka v. U.S. Dep’t of Health &

Human Servs., 87 F.3d 508, 518 (D.C. Cir. 1996) (stating that information is

“presumptively discoverable,” except that privileged information is “presumptively

not discoverable”).

[¶14] In seeking to avoid providing Moniz’s full appraisal report to

Pinkham as discovery in the context of this litigation, the MDOT convinced the

Superior Court that the appraisal information was not just confidential, but also

privileged. Section 63, however, unlike the numerous statutes for which the

Legislature has expressly granted privilege in a wide variety of circumstances, is

entirely devoid of any language suggesting that it provides for privilege. E.g.,

5 M.R.S. § 200-H(6) (2015) (designating certain records “confidential and . . . not

subject to subpoena, discovery or introduction into evidence in a civil or criminal

action”); 22 M.R.S. § 8754(3) (2015) (stating that certain records are “[p]rivileged

and confidential” and defining “[p]rivileged and confidential” to mean not subject

to FOAA; not subject to “discovery, subpoena or other means of legal compulsion

for its release to any person or entity”; and not “[a]dmissible as evidence in any

civil, criminal, judicial or administrative proceeding”); 32 M.R.S. § 2599 (2015)
 11

(declaring some records “confidential and . . . exempt from discovery without a

showing of good cause”). FOAA itself also contains a separate public records

exception for privileged information. 1 M.R.S. § 402(3)(B). At argument, the

Department’s counsel acknowledged that there is no relationship between the

MDOT and the property owners from whom it is taking property that, as a matter

of social policy, might be deemed to “deserve protection.” Field & Murray, Maine

Evidence § 501.1 at 206.

[¶15] We are not persuaded by the MDOT’s contention that the “and may

not be disclosed” language in section 63 somehow affords a privilege. It contains

none of the language regarding discovery, admissibility, privilege, legal

proceedings, subpoena, evidence, and the like that characterize other provisions of

privilege. Given the intersection of section 63 with FOAA, the phrase “and may

not be disclosed” supplies an operational definition of “confidential” that invokes

the precise language of FOAA. See 1 M.R.S. § 402(3)(K), (L), (Q) (defining, as

public records exceptions to FOAA, when certain information “will be withheld

from disclosure” or from “further disclosure”); see also 1 M.R.S. § 432(2)(D)

(2015) (regarding the “public interest in the disclosure of records”); 1 M.R.S.

§ 434(2)(D) (2015) (same).

[¶16] In the absence of any such language in section 63, we conclude that

the statute does not render Moniz’s entire appraisal report privileged information
12

as a matter of law.6 That information was discoverable, even if protected from

further release, as long as it comported with the relevance requirement of M.R.

Civ. P. 26, which we examine next.

B. Relevance

[¶17] The MDOT argues that even if the information is not exempt from

discovery pursuant to section 63, it is not relevant to the determination of just

compensation, and therefore was properly excluded from discovery.7 We review

the court’s decisions regarding the relevance of requested discovery for clear error,

6
Our decisions in prior cases interpreting 23 M.R.S. § 63 (2015) do not contradict this conclusion.
We have twice considered the application of section 63, but only as to the denial of FOAA requests rather
than in the context of a claim of privilege. Springfield Terminal Ry. Co. v. Dep’t of Transp.,
2000 ME 126, ¶¶ 1, 10, 754 A.2d 353; Davric, 606 A.2d at 202. Moreover, in other contexts, we have
noted the distinction between confidentiality and privilege. See Me. Health Care Ass’n Workers’ Comp.
Fund v. Superintendent of Ins., 2009 ME 5, ¶¶ 10 & n.6, 11, 962 A.2d 968 (interpreting a confidentiality
statute to protect information from a FOAA request, but noting that the statute was otherwise “noticeably
silent with regard to discovery requests between private litigants” and stating that a “confidential” record
still may be subject to “restricted disclosure between private parties in the scope of an adjudicatory
proceeding” with the use of protective orders); Pooler v. Me. Coal Prods., 532 A.2d 1026, 1028
(Me. 1987) (determining that confidential materials were nevertheless admissible at trial); Me. Sugar
Indus., Inc. v. Me. Indus. Bldg. Auth., 264 A.2d 1, 6 (Me. 1970) (holding that, although certain
information was confidential pursuant to statute, because the statute otherwise contained “no express
provision barring use of the information in a judicial proceeding,” the provision must be construed to
allow disclosure in litigation).
7
The court did not undertake an in camera review of Moniz’s entire appraisal report, but it implicitly
agreed with the MDOT’s argument that the entire report was irrelevant by allowing Moniz to testify upon
finding that

[w]hat has been produced by Mr. Moniz through prior discovery production . . . involves
the report as it relates to Mr. Pinkham’s property. That report also includes the basis
upon which that appraisal was prepared and conducted, and the determination made, as
well as the comparable sales that were referenced in the information regarding those
comparable sales. That information . . . has since been supplemented by order of this
Court with additional production of documents . . . .

In other words, the court found that Pinkham had the information that he needed concerning the appraisal
of his property to discern the basis of Moniz’s opinion and conduct an effective cross-examination.
 13

Jacob v. Kippax, 2011 ME 1, ¶ 14, 10 A.3d 1159, and discovery orders themselves

for an abuse of discretion, Picher v. Roman Catholic Bishop of Portland,

2013 ME 99, ¶ 6, 82 A.3d 101. The interpretation of a statute is subject to de novo

review. In re E.A., 2015 ME 37, ¶ 10, 114 A.3d 207.

[¶18] “The measure for just compensation in a partial takings case is the

difference between the fair market value of the property immediately before the

taking and the fair market value of the property remaining immediately after the

taking.” McTeague v. Dep’t of Transp., 2000 ME 183, ¶ 8, 760 A.2d 619. “[F]air

market value . . . is the market value of the land for its best and highest use at the

time of the taking or in the foreseeable future.” Curtis v. Me. State Highway

Comm’n, 160 Me. 262, 266, 203 A.2d 451 (Me. 1964).

[¶19] Although there are myriad ways to determine the fair market value of

property, the methodology chosen by the MDOT’s appraiser to assess the value of

Pinkham’s property was the “sales comparison” method, in which, Moniz testified,

he used “arms-length sales in the market to compare to the subject property that

you’re appraising. The purpose is to find as similar properties as possible, that

have been bought and sold in the open market.” The use of this method is not, in

itself, problematic; we have held that a court may examine evidence of comparable

sales “to inform its decision.” McTeague, 2000 ME 183, ¶ 9, 760 A.2d 619;

see Terfloth v. Town of Scarborough, 2014 ME 57, ¶ 11 n.5, 90 A.3d 1131 (noting
14

that “one of three general methods of determining fair market value is appraising

property by analyzing sale prices of similar property” (quotation marks omitted)).

[¶20] In determining whether the method was reliable, however, knowing

which properties were used as “comparables” is important. None of the

comparables used by Moniz when appraising Pinkham’s property was a property

whose value was affected by the sale of a seventeen-foot-wide or similar sized strip

of road frontage. The MDOT’s appraisal relied instead on the sales prices of

undeveloped parcels of land along Route 1A that were not involved in the

widening project. Whether Moniz used the comparable sales method in assessing

the other properties affected by this project, and whether the comparables Moniz

used for Pinkham’s property were the same ones he used for the rest of the project

is not known; Pinkham was precluded from reviewing those portions of Moniz’s

report that contained information about the methods he used or the results he

reached when appraising all of the other properties along Route 1A from which the

MDOT took strips of land as part of the same widening project.

[¶21] The MDOT points out that because of the “distinctiveness” of each

parcel of property, the appraisals of the neighbors’ properties taken for the same

project are irrelevant.8 This argument is not persuasive. Although Pinkham’s

8
In addition to arguing that the other appraisals were not discoverable because they were irrelevant,
the MDOT has asserted that the appraisal information for any other parcels affected by the project was
inadmissible. To support this portion of its argument, the MDOT references Bajwa v. Sunoco, Inc., in
 15

property may have differed from his neighbors’ properties—in terms of size and

use, for example—those properties did share other facts in common with

Pinkham’s, such as their locations, the widths of the pieces taken, the time frame in

which the properties were taken by the State, and the circumstances in which the

properties were taken. The sizes and uses of the different properties are

distinctions that may be explored on cross-examination, or that may provide bases

for arguing about admissibility, but such distinctions do not provide a basis for

exempting the appraisal information from discovery. The MDOT negotiates for

and acquires property on a project-wide basis, so the methods and information used

to appraise all of the parcels in that project are arguably relevant to the

determination of the value of one parcel. In Timberlands, Inc. v. Maine State

Highway Commission, we vacated a judgment when the court, in its jury

instructions, withdrew relevant valuation evidence from the jury’s consideration.

284 A.2d 894, 895 (Me. 1971). We observed,

which a federal court held that “sales to potential condemnors are involuntary sales and as such cannot
establish the fair market value of comparable property.” 329 F. Supp. 2d 726, 733 (E.D. Va. 2004). A
closer reading of Bajwa reveals, however, that the court’s conclusion regarding the irrelevance of
information of similarly situated property owners was limited to the evidence of the sale price of those
properties. Id. at 733-734 (referencing, in turns, “[t]he price paid by a condemnor,” “evidence of prices
paid by the government,” the “payments” made in a condemnation, the “sales of property made to
agencies vested with the power of eminent domain,” “sales to condemnors,” and the like (emphases
added) (quotation marks omitted)). Although we agree with the MDOT that the prices paid for
condemned or taken properties could reflect compromises made to avoid the expense and uncertainty of
litigation given the involuntary nature of a government taking, the appraisals of such properties present
no such concern, as demonstrated by the MDOT’s introduction of an appraisal of Pinkham’s property to
establish its fair market value.
16

Where the value of real estate is in issue, any evidence which will aid
the jury in fixing the fair market value of the property is admissible
for their consideration, provided such evidence is not speculative in
nature, would be considered by a prospective seller or purchaser and
tends to enhance or depreciate the value of the property taken. . . . The
owner of the land taken by the process of eminent domain has the
right to this higher fair market value or at least to the opportunity of
proving it to the jury, as he is entitled to no less under the
constitutional mandate than an exact equivalent for the injury.

Id. at 897-98.

[¶22] Here, the MDOT is not attempting to use section 63 to avoid a

competitive disadvantage, as section 63 contemplates, see Davric Me. Corp. v. Me.

Dep’t of Transp., 606 A.2d 201, 203 (Me. 1992); the negotiations between the

MDOT and Pinkham have long since concluded. Rather, the MDOT seeks the

protection of section 63 to obtain a trial advantage in denying Pinkham the

information that would allow him to effectively challenge the MDOT’s calculation

of Pinkham’s property value. See United States v. 22.80 Acres of Land,

107 F.R.D. 20, 23 (D. N.D. Cal. 1985) (“The [property owners] seek discovery of

the original appraisal report not to improve their position in the long-since

terminated negotiations, but to equip them to present their case fully in the

upcoming trial of this matter.”). We conclude that the appraisals of properties

taken in the course of this same widening project are relevant at least for discovery
 17

purposes pursuant to M.R. Civ. P. 26.9 See Hoover v. U.S. Dep’t of the Interior,

611 F.2d 1132, 1137 (5th Cir. 1980) (“An appraisal is relevant in a condemnation

proceeding to the extent that it bears upon the primary issue of just

compensation.”).

[¶23] Both the Maine Constitution and Maine statutes guarantee Pinkham

the right to be paid just compensation for the land taken from him. Me. Const.

art. I, § 21; 23 M.R.S. § 157. Pinkham has the right to have a fair trial with regard

to this property claim. Although we are cognizant of the deferential standard of

review concerning a trial court’s discovery rulings generally, Picher, 2013 ME 99,

¶ 6, 82 A.3d 101, we must conclude that the discovery rulings here prevented

Pinkham from having that fair trial. The court incorrectly relied on section 63 to

prohibit Pinkham from obtaining relevant information in discovery and seeking to

present it at trial; section 63 does not preclude either. Therefore, the interests of

justice require that Pinkham be given the opportunity to review that information in

9
In the absence of any discovery privilege pursuant to section 63, and because Moniz was the State’s
expert who was allowed to present his opinion of the fair market value of the taken property, the facts and
data underlying his opinion were also discoverable pursuant to M.R. Evid. 705(a), (b). Because we
conclude that Moniz’s entire appraisal report was the proper subject of discovery, we need not address
Pinkham’s alternative argument, that if the entire appraisal report were not discoverable, M.R. Evid. 508
precluded the State from offering Moniz as a witness. In addition, Pinkham’s argument that the court
should have permitted testimony from James Sarosi, another landowner whose property was taken, is not
persuasive and we do not discuss it further.
18

discovery—within the constraints of any protective provisions to preclude its

public disclosure pursuant to Rule 2610—and to seek its admission at a new trial.11

The entry is:

Judgment vacated. Remanded for further
proceedings consistent with this opinion.

10
A well-established structure is already in place to limit the public availability of confidential
information even when discoverable. See M.R. Civ. P. 26(b)(5)(A), (c), (g). The court may issue a
protective order precluding discovery, specifying the terms and conditions of discovery, setting out the
method of discovery, limiting the scope of discovery, designating who may be present while discovery is
conducted, sealing a deposition, protecting trade secrets, ordering the parties to file documents
simultaneously, allocating the costs of discovery, requiring the presentation of a witness on a discovery
issue, ordering an in camera inspection, or requiring the parties to redact certain materials. M.R.
Civ. P. 26(c); Me. Health Care Ass’n Workers’ Comp. Fund, 2009 ME 5, ¶ 11, 962 A.2d 968 (“[T]he
hearing officer acted more than reasonably in formulating the protective order, engaging in appropriate
balancing between [one party’s] need for the information and the confidentiality concerns of [the other
party].”); see St. Paul Ins. Co. v. Hayes, 2001 ME 71, ¶ 10 & n.3, 770 A.2d 611 (suggesting that a party
could have sought a protective order in discovery); Halacy v. Steen, 670 A.2d 1371, 1377 (Me. 1996)
(“The terms of release should limit access to the [document] to insure that the disclosed material is no
more widely broadcast than is absolutely necessary.”); Mondello v. Gen. Elec. Co., 650 A.2d 941, 943
(Me. 1994) (discussing redacted deposition transcripts); cf. Med. Mut. Ins. Co. of Me. v. Bureau of Ins.,
2005 ME 12, ¶¶ 14-15, 866 A.2d 117 (concluding that certain information did not constitute a trade
secret, and therefore was not entitled to a protective order in discovery).
11
Even more protections are in place as to admissibility at trial. The Rules of Evidence guarantee, for
example, that only evidence that is relevant, M.R. Evid. 402; authentic, M.R. Evid. 901; not unfairly
prejudicial, M.R. Evid. 403; and offered by a competent witness, M.R. Evid. 601, reaches a fact-finder.
The Maine Rules of Evidence also prevent the admission of privileged information, M.R. Evid. 501, but
contain no exclusion for non-privileged confidential information. Courts have the authority to prevent the
general public from having access to records and watching proceedings that the Legislature has deemed
confidential. See Field & Murray, Maine Evidence § 501.4 at 211-12 (6th ed. 2007). The outcome the
Legislature wished to avoid by making materials confidential is thereby still preserved even during
discovery and at trial. Furthermore, given these protections, a party may not necessarily obtain
information in discovery just by filing an appeal of the government’s denial of a FOAA request.
 19

On the briefs:

Jeffrey T. Edwards, Esq., Preti Flaherty Beliveau & Pachios,
LLP, Portland, for appellant Terrence E. Pinkham

Rebecca H. Farnum, Esq., and Jason P. Donovan, Esq.,
Thompson & Bowie, LLP, Portland, for appellee Maine
Department of Transportation

Jonathan Arey, Esq., Maine Turnpike Authority, Portland, for
amicus curiae Maine Turnpike Authority

Sigmund D. Schutz, Esq., Preti, Flaherty, Beliveau & Pachios,
LLP, Portland, for amici curiae Maine Freedom of Information
Coalition and New England First Amendment Coalition

Richard L. O’Meara, Esq., Murray Plumb & Murray, Portland,
Lauri Boxer-Macomber, Esq., Kelly, Remmel & Zimmerman,
Portland, and Ben D. Kappelman, Esq., Dorsey & Whitney
LLP, Minneapolis, Minnesota, for amicus curiae Maine Trial
Lawyers Association

Zachary L. Heiden, Esq., American Civil Liberties Union of
Maine Foundation, Portland, for amicus curiae American Civil
Liberties Union of Maine Foundation

At oral argument:

Jeffrey T. Edwards, Esq., for appellant Terrence E. Pinkham

Jason P. Donovan, Esq., for appellee Maine Department of Transportation

Hancock County Superior Court docket number RE-2012-54
FOR CLERK REFERENCE ONLY