Kegerise v. Susquehanna Township School District et al

Filing 148

MEMORANDUM re. Dft School District's mtn to extend discovery and serve subpoenas 109 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 6/5/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DR. SUSAN M. KEGERISE,
Plaintiff
vs.
SUSQUEHANNA TOWNSHIP
SCHOOL DISTRICT, et al.
Defendants

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: CIVIL NO. 1:CV-14-0747
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(Judge Caldwell)
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MEMORANDUM
Plaintiff is Dr. Susan M. Kegerise, the former superintendent of the
Susquehanna Township School District. The defendants are the School District and
three current or former members of the District's School Board, Carol L. Karl, Jesse
Rawls, Sr., and Mark Y. Sussman. Plaintiff filed this lawsuit seeking redress after the
Board discharged her as superintendent.1 Various claims have been made arising from
the circumstances of her discharge.
Defendant School District has filed a motion to extend discovery and to
serve subpoenas on Abom & Kutulakis, the law firm that formerly represented Plaintiff in
this matter, and Paul Blunt, Esq., a former counsel for the School District.
The impetus for the motion was Plaintiff’s production of documents resulting
from an order of May 17, 2016, intended to resolve certain discovery concerns both
parties had. In regard to Plaintiff, the order required her to “provide Defendants with

1

Defendants assert Plaintiff resigned. We will accept Plaintiff’s characterization of the
end of her employment for the purpose of this memorandum.

assurances that she has produced all documents in her possession that were subject to
Defendants’ discovery requests and produce any remaining documents, if such exist.”
(Doc. 107).
As part of the document production, Plaintiff produced certain e-mails. For
the purpose of the current motion, Defendants have separated the e-mails into two
groups. One group, exemplified in Exhibit A to Defendant’s motion, consists of e-mails
sent by a former member of the School Board to her private counsel, who forwarded the
e-mails to Plaintiff’s then counsel, the late Jason Kutulakis. A second group, exemplified
in Exhibit B to the motion, consists of e-mails sent by the same former Board member to
Attorney Blunt. The e-mails were sent at various times while Plaintiff was represented by
Kutulakis and her current counsel. According to Defendants, some of the forwarded emails, exemplified in Exhibit C to the motion, “contain confidential communications” from
School District attorneys to the Board. (Doc. 109, Defs.’ Motion ¶ 13). Other e-mails,
exemplified in Exhibit D to the motion, contain Board members’ “opinions and strategy
regarding the litigation between Plaintiff and” the School District. (Id. ¶ 14). The exhibits
have been submitted to the court for in camera review.
At her deposition, taken after the close of discovery, Plaintiff could not
explain why the e-mails had been forwarded to her counsel and said she had not
previously seen some of the e-mails. (Id. ¶¶ 20 and 21).
“Defendants believe that the emails . . . show that sensitive and/or
confidential information has been passing improperly between” the former Board

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member, “that Board Member’s counsel,” Kutulakis, Blunt, and Plaintiff’s current counsel.
(Id. ¶ 25).
Defendant School District asserts that the information sought is relevant
because the District and defense counsel “must be afforded an opportunity to understand
whether any privileges may have been waived and the extent of any waiver and whether
former Board counsel [Blunt] is improperly providing Plaintiff and/or her counsel with
information adverse to his former client, all of which may have now or in the future
prejudice the Defendants’ ability to mount a defense.” (Id. ¶ 26). Defendant maintains
Blunt has a conflict of interest because he represented the School District in the
negotiation of Plaintiff’s employment agreement and in defense of a federal lawsuit
brought against the School District by Rawls and Sussman, and the contract and lawsuit
“are at issue in various counts of the instant matter.” (Id. ¶¶ 9 and 10).
Defendant School District therefore requests an opportunity “to seek
additional discovery regarding the forwarded emails and how they came into the
possession of Plaintiff and her counsel.” (Id. ¶ 22). Defendant also seeks permission to
serve subpoenas on Abom & Kutulakis and Attorney Blunt. The subpoenas would seek
the following information:
Complete copies of all emails, text messages, notes,
correspondence, photographs, videos, or other documents not
privileged both sent or received by any and all employees,
attorneys, and/or agents of Abom & Kutulakis, L.L.P., to or
from Dr. Peter J. Sakol, Kathy L. DelGrande, Dr. Kathy L.
Taschner, Dr. Kimberly R. Donahue, Bruce J. Warshawsky,
Esq., Paul Blunt, Esq., any and all current or former
employees of the Susquehanna Township School District
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(hereinafter “STSD”), members of the STSD School Board,
and any and all representatives of the person(s) above
regarding Dr. Susan Kegerise, STSD, and any litigation in
which Dr. Susan M. Kegerise was or is involved from the
dates of January 1, 2012 through present.
(Doc. 109-1, ECF p. 2).
Plaintiff opposes the motion. She asserts that to avoid “further meritless
claims by Defendants,” she produced every document that “could possibly be responsive
to Defendant’s discovery requests,” and except for a “few documents,” all of them had
already been produced by Plaintiff or by Defendants to Plaintiff. (Doc. 113, Pl.’s
Response ¶¶ 3 and 4).
In part, she also argues that there could be no waiver of any privilege here
because an individual Board member cannot waive a privilege for the entire Board. In
any event, Plaintiff is willing to stipulate that no waiver of privilege occurred here, and
Defendant’s interests can therefore be protected by an order prohibiting Plaintiff from
using the privileged information and prohibiting the former Board member from providing
additional privileged information. (Id., ¶¶ 17 and 18). Also, further discovery is not
necessary here as Defendant is already in a position to determine if there has been a
waiver and the extent of any waiver because “Plaintiff has already produced everything in
Plaintiff’s possession, including those acquired from Abom and Kutulakis LLC and Paul
Blunt.” (Doc. 113, Pl.’s Response ¶ 20). Finally, Plaintiff asserts none of the e-mails
reveals information prejudicial to Defendants.

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In reply, the School District in part argues as follows. It contends that
Plaintiff’s arguments concerning confidentiality and privilege miss the mark, that the real
issue is that Defendants should be able “to explore the existence of relevant information,
who possesses that information and have the ability to obtain and analyze such
information.” (Doc. 144, Defs.’ Reply Br. at p. 8). It also contends that the information
sought is relevant as “discovery requests may be deemed relevant if there is any
possibility that the information may be relevant to the general subject matter of the
action.” CedarCrestone Inc. v. Affiliated Computer Services LLC, No. 14-MC-0298, 2014
WL 3055355 at *4 (M.D. Pa. July 3, 2014)(quoted case omitted). Here, Defendant
asserts that the e-mails show that information has been exchanged between Plaintiff and
Blunt and so further discovery is necessary to reveal other evidence, evidence the School
District believes has been withheld on the basis of the alleged late disclosure of
additional documents.
We disagree with Defendant School District. First, its motion did rely on
privilege issues and whether any privileges had been waived, saying this was why the
additional discovery was relevant. As Plaintiff points out, no further discovery is
necessary on these issues as Defendant is already in a position to determine if there has
been a waiver and the extent of any waiver because Plaintiff has already produced all the
e-mails in Plaintiff’s possession, including those acquired from Abom and Kutulakis LLC
and Paul Blunt. We add that we have reviewed the e-mails submitted for in camera
inspection and none of them reveal Board members’ opinions and strategy regarding the

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instant litigation. And while some e-mails contain confidential communications from
School District attorneys to the Board, the communications do not relate to the instant
case. In any event, Plaintiff agrees that no privileges have been waived in regard to the
e-mails so that if Plaintiff tries to use any privileged information, Defendants can seek an
order prohibiting its use. Additionally, discovery is not needed to locate further evidence
as Plaintiff represents that she has produced all the documents in her possession.2
We will issue an appropriate order.

/s/William W. Caldwell
William W. Caldwell
United States District Judge

Date: June 5, 2017

2

Defendant School District has raised other arguments in its reply brief, but they have
been presented for the first time, and we do not consider arguments raised for the first time in
a reply brief. See MONY Life Ins. Co. v. Snyder, No. 15-CV-2109, 2016 WL 1058923, at *4
(M.D. Pa. Mar. 17, 2016)(Caldwell, J.).

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