It is not uncommon for an employee experiencing whistleblower retaliation or discrimination to audio record the employer’s managers, supervisors, and co-workers for later use in a lawsuit against the employer. Employers will naturally request those recordings during the discovery process. Fortunately, Maine courts have long recognized that an employee may obtain a court order allowing the employee to withhold audio recordings of employer witnesses until after the employee’s counsel has taken the deposition of the recorded employer witness. This is known as the Manske Order, based on the case of Manske v. UPS Cartage Services, Inc., 789 F. Supp. 2d 213, 214 (D. Me. 2011). The benefit of a Manske Order is that it acts as a truth serum to unscrupulous employer witnesses that may try to tailor testimony to avoid liability.
But, can an employer withhold an employee’s handwritten notes until after the employer’s counsel has taken the employee’s deposition?
According to the Federal District Court, District of Maine, no, an employer may not obtain a Manske Order allowing it to withhold an employee’s handwritten notes until after the employee’s deposition.
On March 17, 2022, in the whistleblower retaliation case of Blais v. St. Mary’s Health Systems, Inc and Covenant Health, Inc., the Court overruled the employer’s objection to the Magistrate Judge’s order denying the employer’s request for a Manske Order. The Magistrate Judge had previously denied the employer’s request for a Manske Order, explaining an employee’s handwritten notes do not generate the same concern as the employee’s audio recordings of employer witnesses. And, unlike the employee’s audio recordings, the handwritten notes the employer was trying to withhold were not created by the employer, but by the employee himself. The Court agreed with the Magistrate Judge and found that the Magistrate Judge’s order was not clearly erroneous or contrary to law.
Notably, the employee in this case, Mr. Blais, had previously obtained a Manske Order to witthold audio recordings that he made of employer witnesses involved in his termination. The employer opposed and resisted the employee’s Manske Order before attempting to obtain its own Manske Order. The Court sided with the employee in both cases. The Court’s rulings preserve the integrity of the Manske Order, which recognizes the inherent asymmetry between the employee and employer in employment cases, where employers often have access to all of the relevant evidence, while employees must go through the discovery process to obtain evidence.
Mr. Blais was represented by Chad Hansen and Martin Tartre.