Summary
In Morrell, an attorney's deposition was being taken wherein he was asked what he advised his client as to his appraisal of the merits of the law suit.
Summary of this case from Smith v. Central Dauphin School DistrictOpinion
No. 3:04cv1690.
April 5, 2005
MEMORANDUM
Presently before the Court for disposition is a discovery dispute between the plaintiff and the defendants. During discovery, the defendants prevented a number of witnesses from answering questions because they asserted that the responses were privileged. This matter has been fully briefed and is ripe for disposition.
Background
In the instant suit, Plaintiff Elaine Morrell ("Plaintiff') alleges that Defendant Borough of Throop ("Borough") terminated her employment with the Borough in violation of her First Amendment rights. Plaintiff was employed with the Borough as an administrator for twelve years. In January 2004, Defendants George Marushock, Daryl Manichetti, Cindy Blanchard, and Susan Shortz ("the individual defendants") took office, and comprised the majority of the Borough Council. Thereafter, the Borough Council terminated three employees, Stanley Gongliewski, Ronald Bukowski, and Lenore Dolan, who had previously openly opposed the individual defendants in their bid for election. These former employees filed suit in federal court against the Borough and the individual defendants inGongliewski v. Throop.
In June 2004, during discovery in the Gongliewski case, Plaintiff was compelled to submit to a deposition. Three weeks after this deposition, Plaintiff was terminated without notice. Plaintiff alleges that the defendants terminated her employment because her deposition testimony was adverse to their interests in the Gongliewski case.
Discussion
During discovery in the instant case, Plaintiff seeks to discover whether the individual defendants were appraised of her deposition testimony in the Gongliewski case. On the date that she was terminated, Louis Cimini, the Borough Solicitor who represented her at the deposition, was also terminated. Plaintiff deposed Attorney Cimini and asked what he relayed to the defendants regarding the content of Plaintiff's deposition. They further deposed other individuals and asked questions regarding any discussions of Plaintiff's termination during an executive session.
The defendants have placed objections on the record on two grounds. First, they object on the grounds that Plaintiff seeks information protected by the attorney-client privilege. Second, they have claimed that any matter discussed during an executive session is privileged. We will sustain the defendants' attorney client privilege objections, but we find that no general `executive session' privilege exists.
The elements of the attorney-client privilege are set forth below.
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court . . ., and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purposes of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.Rhone-Poulenc Rorer v. Home Indemnity Co., 32 F.3d 851, 862 (3d Cir. 1994).
During Attorney Cimini's deposition, Plaintiff repeatedly asked him questions regarding what he explained to the defendants, his clients at the time, following Plaintiff's deposition. Plaintiff characterizes these questions as seeking facts, but after a careful review of the questions, we find that they seek communications. For example, Plaintiff asked "did you ever have any communications with Borough council members where you gave them your appraisal of the merits of the lawsuit?" (Cimini Dep. at 32 ln. 16-21). Plaintiff also asked "[d]id you ever apprise Borough council members as to what took place during particular depositions in the Gongliewski case?" (Cimini Dep. at 33 ln. 17-20). These seek privileged communications, not facts.
[T]he protection of privilege extends only to communications and not to facts. A fact is one thing and a communication concerning a fact is an entirely different thing. The client cannot be compelled to answer the question, `what did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.Rhone-Poulenc Rorer, 32 F.3d at 855 (citing Upjohn v. United States, 449 U.S. 393, 395-96 (1981) (quoting City of Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)).
Should Plaintiff desire to discover what the individual defendants knew about her deposition when they fired her, she can ask the individual defendants what they knew, but cannot ask what their attorney told them. Even if their knowledge came from their attorney, the knowledge is not privileged, but the communications with the attorney are. See id. at 864 ("A litigant cannot shield from discovery the knowledge it possessed by claiming it has been communicated to a lawyer; nor can a litigant refuse to disclose facts simply because that information came from a lawyer."). Therefore we will sustain the objections to the questions listed in Defense Exhibit B attached to their Brief in Support of Their Assertion of the Attorney-Client Privilege.
Executive Privilege
The parties additionally dispute whether any matter discussed in an `executive session' is privileged whether or not it implicates the attorney-client privilege. In the defendants' brief, they correctly argue that a statement made in an executive session is privileged to the extent it implicates the attorney-client privilege. In objecting during the depositions, however, the defendants argued for a much broader protection unrelated to the attorney-client privilege, asserting, "Under Pennsylvania law, the Sunshine Act absolutely privileges certain items to be discussed in executive session. Those items included, but are not limited to, personnel decisions, contract negotiations, as well as other specifically enumerated matters." (Cimini Dep. at 24.). Plaintiff argues that this interpretation of the executive session is incorrect.
The term "Executive session" is defined as "[a] meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting." 65 PA. CONS. STAT. § 703. Pennsylvania law provides,
Executive Sessions
(a) Purpose — An agency may hold an executive session for one or more of the following reasons:
(1) To discuss any matter involving the employment, appointment, termination of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employee or appointees whose rights could be adversely affected may request, in writing, that the matters or matters be discussed at an open meeting. The agency's decision to discuss such matters in executive sessions shall not serve to adversely affect the due process right granted by law, including those granted by Title 2 (relating to administrative law and procedure). The provisions of this paragraph shall not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office. . . .
(4) To consult with its attorney or other professional advisor regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed.
(5) To review and discuss agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matters related to the initiation and conduct of investigations of possible or certain violations of the law and quasi-judicial deliberations.65 PA. CONS. STAT. § 708 (emphasis added). The plain language of the statute does not provide that every communication in an executive session is privileged, but instead recognizes that while some matters will be privileged, others will not. The purpose of the executive session is to allow agencies to shield some discussions from the Pennsylvania Sunshine Act, which generally provides that all agency meetings be open to the public. The statute allows the agency to hold a meeting closed to the public, but nothing in the statute provides that the agency's discussions are privileged from a private litigant. Defendants have cited no case law supporting the proposition that all matters discussed in an executive session are privileged, and our research has uncovered no such case. The Pennsylvania Supreme Court has recognized that an agency may hold an executive session to discuss matters that are not privileged. Kennedy v. Upper Milford Tp. Zoning Hearing Bd., 834 A.2d 1104, 1118-19 (Pa. 2003) (concluding that quasi-judicial proceedings may properly be conducted in an executive session even if they do not involve matters that are otherwise privileged). Thus, a matter discussed in an executive session is privileged only to the extent that it implicates another privilege.
"Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under section 708 (relating to executive sessions). . . ." 65 PA. CONS. STAT. § 704.
Thus, Plaintiff may seek the contents of the executive sessions to the extent that the discussions do not implicate the attorney-client privilege. Plaintiff may ask the question on line 17-18 of page 21 of Cimini's deposition (attached to Defendants' brief). He may also ask the question on line 21-23 of page 40 of James Barnick's deposition (Exhibit 3 attached to Plaintiff's brief), and the question on line 3-6 of page 35 of Joseph Barone's deposition (Exhibit 4 attached to Plaintiff's brief). Plaintiff may not ask the questions posed to Attorney Cimini listed in Defense Exhibit B because they clearly implicate the attorney-client privilege. An appropriate order follows.
ORDER
AND NOW, to wit, this 5th day of April 2005, it is hereby ORDERED as follows:
1) Defendants may not assert a general `executive session' privilege, and matters discussed in an executive session are privileged only to the extent that they implicate any other privilege.
2) Plaintiff may ask the following questions:
a) the question on line 17-18 of page 20 of Cimini's deposition;
b) the question on line 21-23 of page 40 of James Barnick's deposition; and
c) the question on line 3-6 of page 35 of Joseph Barone's deposition (attached).
3) Plaintiff may not seek information covered by the attorney-client privilege. Defendants objections posed to the questions listed in Defense Exhibit B (attached) are SUSTAINED.
EXHIBIT 3
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CIVIL ACTION NO. 3:04 CV-1690
ELAINE MORRELL, Plaintiff,
v.
BOROUGH OF THROOP, GEORGE MARUSHOCK, DARYL MENICHETTI, CINDY BLANCHARD AND SUSAN SHORTZ, Defendants.
Scranton, Pennsylvania Thursday, January 6, 2005
TRANSCRIPT of testimony of JAMES BARNICK, as taken by and before Sean M. Fallon, a Federally-Approved Registered Professional Reporter and Commissioner of Deeds of the Commonwealth of Pennsylvania, at the offices of ELLIOTT GREENLEAF SIEDZIKOWSKI, P.C., PNC Bank Building, 201 Penn Avenue, commencing at 1:42 o'clock in the afternoon.
APPEARANCES:
TRUJILLO RODRIGUEZ RICHARDS, LLC BY: PETER D. WINEBRAKE, ESQ. The Penthouse 226 West Rittenhouse Square Philadelphia PA 19103 (215) 731-9004 Attorneys for Plaintiff
ELLIOTT GREENLEAF SIEDZIKOWSKI, P.C. BY: INGRID S. CRONIN, ESQ. JOEL M. WOLFF, ESQ. PNC Bank Building 201 Penn Avenue, Suite 202 Scranton PA 18501 (570) 346 — 7569 Attorneys for Defendants
INDEX WITNESS PAGE JAMES BARNICK
By Mr. Winebrake 4 By Mr. Wolff 84
EXHIBITS
NUMBER DESCRIPTION PAGE
1 Handwritten memo, 3-8-04 18 2 Letter, July 6, 2004, Cimini 25 to Borough Council 3 Minutes of Monthly Meeting, 34 July 26, 2004 4 Minutes of Monthly Meeting, 53 June 28, 2004
JAMES BARNICK, after having been first duly sworn, was examined and testified as follows:
EXAMINATION
BY MR. WINEBRAKE:
Q. Mr. Barnick, thanks for coming down in the snow. We appreciate it.
My name is Pete Winebrake. I'm a lawyer from Philadelphia. I represent Elaine Morrell in a federal civil rights lawsuit that has been filed. The name of the lawsuit, councilman, is Morrell versus Throop Borough, and then four current Throop council members are being sued, also. Those people are George Marushock, Susan Shortz, Daryl Menichetti, and Cindy Blanchard. You are not being sued, okay?
Do you understand that?
A. Yes.
Q. And do you understand that you are under oath to testify truthfully today?
A. Yes.
Ms. Blanchard put the agenda item on. Did she ever inform you in advance that she was going to move for the elimination of Ms. Morrell's position?
A. No.
Q. Did Ms. Menichetti ever inform you in advance that there might be a motion on the July 26th meeting to eliminate Ms. Morrell's position?
A. No.
Q. Did Mr. Marushock ever inform you of that?
A. No.
Q. Did Ms. Shortz ever inform you of that?
A. No.
Q. Did you ever hear this matter discussed at any public meeting previously?
A. No, not that I can remember.
Q. Do you remember any executive sessions during which eliminating Ms. Morrell's position was discussed?
MR. WOLFF: Before you answer that, could we have a minute outside?
(Witness and counsel confer.)
MR. WOLFF: Let the record reflect that I advised Mr. Barnick that the contents of executive sessions are privileged under Pennsylvania law, and that, if he were to disclose the contents of the executive sessions, he would be subjecting himself to individual liability. And, as such, I have advised him not to disclose anything that went on — the contents in the executive sessions.
MR. WINEBRAKE: Well, I mean, we can call him back, but this is a federal lawsuit dictated by the Federal Rules of Evidence. And federal privileges — I mean, it's a lawsuit involving the termination of an employee. And, if her termination was discussed in executive session, it's not privileged. If it was discussed — if it was discussed with a lawyer during executive session, it's privileged. It's the attorney-client privilege, which is recognized in federal court, but I kind of take issue with the proposition that everything that happens in executive session is privileged in a federal civil lawsuit.
THE WITNESS: Just on the record, I want to say I take issue with the fact that I'm being threatened with this type of disclosure. I'm here to tell the truth and exactly what happened. I don't need a lawyer telling me what I could say and what I can't say.
MR. WOLFF: I'm not telling him what he could say and what he can't say. I'm just telling him that the contents of the executive sessions are privileged.
MR. WINEBRAKE: Well, he's gotten his instructions.
I disagree with the position, but that's fine.
BY MR. WINEBRAKE:
Q. Mr. Barnick, are you willing to tell me what took place in executive session?
A. Apparently, I can't, until you get some kind of order from the judge. I ask that you do that —
Q. Okay.
A. — because I believe it to be — I mean, I've been through many depositions before, and executive session material was always brought forward in terminations and things like that.
Q. I'm just going to ask some questions, and counsel can object, but don't answer, if he's going to object.
Did you — do you ever remember Ms. Morrell's termination or the possibility of Ms. Morrell's termination being discussed in executive session?
MR. WOLFF: Objection.
Privileged material.
BY MR. WINEBRAKE:
Q. Do you ever remember Ms. Morrell's deposition being discussed in executive session?
MR. WOLFF: Objection. It's privileged material.
BY MR. WINEBRAKE:
Q. Do you ever remember the deposition testimony of other — of other deponents in the Gongliewski case being discussed during executive session?
MR. WOLFF: Objection.
BY MR. WINEBRAKE:
Q. Did you ever — leaving aside executive sessions, does the Borough council also have what's called work sessions?
A. Yes.
Q. And what are work sessions?
A. It's like deliberation of what's going to be put on an agenda.
Q. Do you ever remember anybody discussing terminating Elaine Morrell's position during a work session?
A. No. I believe I brought it up several times during public meetings and work sessions, because I seen the way it was going, the way they took the positions with the Borough manager, and the kind of Page 19
EXHIBIT 4
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CIVIL ACTION NO. 3:04 CV-1690
ELAINE MORRELL, Plaintiff, v. BOROUGH OF THROOP, GEORGE MARUSHOCK, DARYL MENICHETTI, CINDY BLANCHARD AND SUSAN SHORTZ, Defendants.
Scranton, Pennsylvania Thursday, January 6, 2005
TRANSCRIPT of testimony of JOSEPH BARONE, as taken by and before Sean M. Fallon, a Federally-Approved Registered Professional Reporter and Commissioner of Deeds of the Commonwealth of Pennsylvania, at the offices of ELLIOTT GREENLEAF SIEDZIKOWSKI, P.C., PNC Bank Building, 201 Penn Avenue, commencing at 3:28 o'clock in the afternoon.
APPEARANCES:
TRUJILLO RODRIGUEZ RICHARDS, LLC BY: PETER D. WINEBRAKE, ESQ. The Penthouse 226 West Rittenhouse Square Philadelphia PA 19103 (215) 731-9004 Attorneys for Plaintiff
ELLIOTT GREENLEAF SIEDZIKOWSKI, P.C. BY: INGRID S. CRONIN, ESQ. JOEL M. WOLFF, ESQ. PNC Bank Building 201 Penn Avenue, Suite 202 Scranton PA 18501 (570) 346 — 7569 Attorneys for Defendants
INDEX
WITNESS PAGE
JOSEPH BARONE
By Mr. Winebrake 4,69 By Ms. Cronin 44
JOSEPH BARONE, after having been first duly sworn, was examined and testified as follows:
EXAMINATION
BY MR. WINEBRAKE:
Q. Mr. Barone, my name is Pete Winebrake. We met once before at a previous deposition. Do you remember that?
A. Yes.
Q. I'm deposing you again, but in a different case.
This one is filed on behalf of Elaine Morrell against the Borough of Throop, Daryl Menichetti, Cindy Blanchard-Johnson, Susan Shortz, and George Marushock, and it concerns the legality of the Borough's termination of Ms. Morrell's employment on July 26th of this year.
Are you aware of the lawsuit?
A. Yes.
Q. And you are here to testify in that lawsuit. Do you understand that? executive session?
A. I don't remember.
Q. Do you remember any executive sessions at which plans to discuss plans to eliminate Ms. Morrell's position were discussed?
MS. CRONIN: Objection.
BY MR. WINEBRAKE:
Q. The — take a look at Exhibit 4, which are the Borough council minutes for the June 28th, 2004 Borough council meeting.
Do you have those minutes before you?
A. Yes.
Q. And do you see down on the first page it says, "Executive session was held Thursday, June 24th, 2004 at 6:00"?
A. Yes.
Q. Do you see that?
A. Yes.
Q. Do you know whether you were at that?
A. I don't remember. There is
EXHIBIT B QUESTIONS OBJECTED TO BY DEFENSE COUNSEL IN THE JANUARY 28, 2005 DEPOSITION OF LOUIS CIMINI, SOLICITOR FOR BOROUGH OF THROOP
QUESTION:p. 32 lines 16-21
"Mr. Cimini, did you ever discuss — upon receiving the Complaint, did you ever have any communications with Borough council members where you gave them your appraisal of the merits of the lawsuit?"
p. 33 lines 17-20
"Did you ever apprise Borough council members as to what took place during particular depositions in the Gongliewski case?"
p. 34 lines 1-4
"Did you ever offer your views to council members regarding whether or not a witnesses' deposition testimony would impact theGongliewski litigation?"
p. 34 lines 8-12
"Did you ever inform, either verbally or in writing, Borough council — any Borough council members of the content of deposition testimony in the Gongliewski case?"
p. 35 lines 11-17
"With respect to the conversation that you've already testified about, where Ms. Menichetti requested copies of the deposition transcripts, do you ever remember Ms. Menichetti, during that conversation, stating why she wanted copies of the deposition transcripts?"
p. 37 lines 7-10
"And did you discuss the content — yes or no. Did you discuss the content of the demand letter with Mr. McDonough?"
p. 37 lines 20-23
"Did you discuss the content of the July 2nd, 2004 demand letter with any Borough council members or Borough officials?"
p. 39 lines 12-17
"In between receiving the July 2nd, 2004 demand letter and sending a copy of it on July 6th, did you ever communicate the demand letter's content to any Borough council members during that interim time period?"
p. 40 lines 1-5
"At any time after sending the package on July 6th, 2004, did you have any communications with any Borough council members regarding the content of the July 2nd demand letter?"
p. 40 lines 17-20
"Did any council members ever discuss with you the content of the July 2, 2004 demand letter?"
p. 40 lines 23-24
p. 41 lines 1-2
"Did any council members ever discuss with you the content of Elaine Morrell's deposition in the Gongliewski case?"
p. 41 lines 10-14
"Were you left with any impressions as to whether or not Ms. Morrell's deposition testimony could be helpful to the plaintiffs in the Gongliewski case?"
p. 41 lines 23-25
p. 42 lines 1-6
"Did any — and this is any time from the commencement of theGongliewski until you leave as Borough council solicitor — as Borough solicitor?
Did any Borough council members ever express to you their feelings or attitude about the Gongliewski lawsuit?"
p. 42 lines 10-13
"Did any Borough council members ever express to you that they were upset by the fact that Mr. Gongliewski, Mr. Bukowski and Ms. Dolan had sued them?"