United States District Court, D. Massachusetts
SCOTT L. HEAGNEY, Plaintiff,
LISA A. WONG, et. al, Defendants.
H. HENNESSY, UNITED STATES MAGISTRATE JUDGE
Order of Reference dated December 22, 2015, pursuant to 28
U.S.C. § 636(b)(1)(A) (Docket #33), this matter was
referred to me for a ruling on Plaintiff Scott L.
Heagney’s Motion for a Protective Order (Docket #30).
Defendants Lisa A. Wong and the City of Fitchburg (the
“City Defendants”) have filed a response. (Docket
#36). A hearing was held on the motion on May 13, 2016. This
matter is now ripe for adjudication. For the reasons that
follow, the Motion for a Protection Order is DENIED.
case arises out of Heagney’s application for the
position of Chief of Police for the City of Fitchburg in
2013. (Compl. at ¶¶ 1, 25). At the time of his
application, Heagney was the Resident Agent-in-Charge of the
Rochester, New York Field Office of the Bureau of Alcohol,
Tobacco, and Firearms (“ATF”). (Id. at
¶ 14). The City Defendants assert that, on his
application, Heagney indicated that his only prior law
enforcement employment, apart from the ATF, was with the Town
of Franklin from 1987 to 2001 and that he had never been
disciplined during his law enforcement career. (Docket #58 at
1). When asked on the application whether there were any
issues that he was aware of that would arise during a
background investigation, Heagney answered in the negative.
(Compl. at ¶¶ 28-29).
March 10, 2014, Fitchburg Mayor Wong announced that Heagney
was her nomination for police chief. (Id. at ¶
32). Heagney’s hiring was contingent on approval by the
Fitchburg City Council. (Id. at ¶ 34). Mayor
Wong tasked Defendant Badgequest, Inc. to conduct a
background investigation of Heagney prior to the City Council
vote. (Docket #58 at 1-2). Prior to that vote, the Mayor, the
City Council, and several area newspapers received an
anonymous letter stating that Heagney had worked, not only
for the Franklin Police Department, but also for the
Attleboro and Falmouth Police Departments, and that he had
disciplinary issues in his past. (Compl. at ¶¶ 59,
62). The letter also stated that Heagney had been brought up
on charges of pistol-whipping in the past, but that the case
had been dismissed when the victim refused to testify.
(Id. at ¶ 62). Heagney maintains that these
statements were false and that the Defendants “failed
to fully investigate the truth or accuracy of any of these
statements.” (Id. at ¶¶ 63, 69).
March 18, 2014, Mayor Wong withdrew her nomination of Heagney
and informed the City Council by email of her decision.
(Id. at ¶¶ 41-42). After withdrawing the
nomination, Mayor Wong made statements to the local press
that Heagney was “not forthcoming” and
“withheld key information” about his
“resume” and his “character.”
(Id. at ¶ 51). The Worcester Telegram &
Gazette published an article on the matter on March 20, 2014,
in which they quoted a text message sent from Mayor Wong
stating, “The city is not interested in pursuing a
candidate for police chief who is not forthcoming with his
resume. We are focused on moving forward with a new
search.” (Id. at ¶ 52). The same article
states “Ms. Wong claims [Mr. Heagney] . . . was not
forthcoming on his resume about his work experience or about
a court case on alleged assault and battery and other charges
when he was 21.” (Id. at ¶ 53)
(alterations in original). Heagney claims that each of Mayor
Wong’s statements was false and made with knowledge of,
or in reckless disregard of, its falsity. (Id. at
¶ 56). Heagney also asserts that Mayor Wong made these
statements without giving Heagney an adequate opportunity to
demonstrate the falsity of the statements and to clear his
name. (Id. at ¶ 57).
their brief, the City Defendants state that, when Heagney was
provided the anonymous letter, he admitted that he had also
worked at the Falmouth Police Department between 1990 and
1993 and had been charged with the crimes of Assault and
Battery with a Dangerous Weapon, Assault and Battery, and
Threatening to Commit a Crime in 1988 while he was a police
officer in Franklin. (Docket #58 at 2). He stated that he had
been acquitted of those crimes and provided a Polygraph
Report of an examination conducted on April 12, 1988,
indicating that he had answered truthfully when denying that
he had threatened a woman with a gun. (Id.). Heagney
also provided a newspaper article regarding the acquittal.
commenced this suit on January 16, 2015, asserting claims
sounding in defamation, unlawful employment practices,
violations of the Massachusetts Criminal Offender Record
Information statute and regulations, violations of 42 U.S.C.
§ 1983, invasion of the right of privacy, infliction of
emotional distress, and tortious interference with
advantageous relationships, naming as Defendants Mayor Wong,
the City of Fitchburg, Badgequest, Stephen H. Unsworth, and
John Doe (the author of the anonymous letter). (Compl.).
December 15, 2016, Heagney was deposed by the City
Defendants. (Docket #30 at 1). During the deposition, counsel
for the City Defendants attempted to inquire into the
underlying facts relating to criminal charges of which
Heagney was acquitted in 1989 and the records for which were
sealed in approximately 2001. (Id.). Heagney’s
counsel instructed him “not to answer questions about
the underlying facts underlying the assault and
battery.” (Docket #58 at 8-9). Heagney’s counsel
further instructed him not to answer anything concerning what
was in his personnel file concerning this incident.
(Id. at 9-10). At the end of the full-day
deposition, the City Defendants’ counsel stated that
they were suspending the deposition. (Docket #30 at 2). On
December 21, 2015, Heagney filed a motion for a protective
order limiting the scope of his deposition to prohibit the
City Defendants from inquiring into the facts underlying the
sealed criminal acquittal. (Docket #30).
scope of discovery generally extends to:
any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs
of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely
Fed. R. Civ. P. 26(b)(1). Relevant evidence is defined in
Federal Rule of Evidence 401 as evidence having “any
tendency” to make a fact that is of consequence in
determining the action more or less probable than it would be
without the evidence.
any time during a deposition, the deponent or a party may
move to terminate or limit it on the ground that it is being
conducted in bad faith or in a manner that unreasonably
annoys, embarrasses, or oppresses the deponent or a
party.” Fed.R.Civ.P. 30(d)(3)(A). “The court may
order that the deposition be terminated ...