Piazza v. County of Luzerne et al

Filing 44

MEMORANDUM (Order to follow as separate docket entry) For the reasons discussed above, Plaintiffs Motion for Discovery of Defendants Attorney-Client Communications Based on Waiver of the Attorney-Client Privilege (Doc. 39) is granted to the extent th e communications relied upon by Defendant Lawton in deciding to terminate Plaintiff are not shielded from discovery by the attorney-client privilege. It is also granted to the extent the discovery deadline is extended for a period of sixty (60) days following the date of this Order. (See Doc. 39 at 4.) Plaintiffs motion is denied to the extent he seeks to be allowed to explore all attorney client communications with any witness. (See Doc. 39 at 4.) An appropriate Order is filed simultaneously with this Memorandum.re 39 MOTION to Compel Discovery Signed by Honorable Richard P. Conaboy on 10/30/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LEONARD C. PIAZZA, III,

:
:
Plaintiff,
:CIVIL ACTION NO. 3:13-CV-1755
:
v.
:(JUDGE CONABOY)
:
COUNTY OF LUZERNE, and
:
ROBERT LAWTON,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s Motion for Discovery of
Defendants’ Attorney-Client Communications Based on Waiver of the
Attorney-Client Privilege.

(Doc. 39.)

In the underlying action,

Plaintiff claims he was unlawfully terminated from his position as
Director of Elections in Luzerne County because of his lack of
political affiliation with a particular candidate and political
officials, parties and factions in power in Luzerne County.
Doc. 40 at 1.)

(See

Defendants maintain that Plaintiff was not

dismissed for partisan reasons.

(Id.)

At issue with the pending

motion is whether Defendant Lawton waived the attorney-client
privilege.

For the reasons discussed below, I conclude Plaintiff’s

motion is properly granted in part.
I. Background
By way of general background, Defendants set out the
following:
In February, 2012, former County
Controller, Walter Griffith (“Mr. Griffith”),

publicly announced his intention to audit,
inter alia, the County’s Bureau of Elections.
(See deposition transcript of Joanne Kelly
attached to the County Defendants’ Appendix
of Exhibits in opposition to Plaintiff’s
motion (“the County Defendants’ Appendix”) as
Exhibit “C” at Exhibit JK-1). Shortly
thereafter, Plaintiff, the County’s then
Director of the Bureau of Elections, notified
Mr. Griffith of Plaintiff’s intention to
examine Mr. Griffith’s committee and campaign
finance reports (“Mr. Griffith’s campaign
finance reports”). (See deposition
transcript of Mr. Lawton attached to the
County Defendants’ Appendix at Exhibit “A” at
Exhibit PRL-3). . . . Plaintiff’s employment
with the County was terminated on April 10,
2012. (See Plaintiff’s amended complaint,
Doc. No. 11, at ¶ 58).
(Doc. 41 at 1-2.)
This motion is based on the assertion of the attorney-client
privilege during Defendant Lawton’s deposition.

When asked why he

terminated Plaintiff’s employment, Defendant Lawton responded “I
did so on the advice of counsel.”

(Doc. 42-1 at 19.)

He was then

asked “Anything else?” and responded “That’s all at this point.”
(Id.)

Plaintiff’s counsel then asked Defendant Lawton “What was

that advice?” and Defendants’ counsel objected.

(Id.)

After some

discussion off the record, Defendants’ counsel affirmed his
objection and advised Defendant Lawton not to answer further
questions, asserting the attorney-client privilege.

(Id. at 20.)

After further discussion on the record, Plaintiff’s counsel and
Defendants’ counsel agreed to proceed with as much of the
deposition as possible and afterward seek court intervention to

2

determine whether Defendant Lawton had waived the attorney-client
privilege and whether he needed to answer the questions regarding
his attorney’s advice.

(Id. at 21-23.)

Following this agreement, Plaintiff’s counsel asked Defendant
Lawton “were there any reasons that formed any part of the basis
for your decision to terminate Mr. Piazza which were not advice
from counsel?”.

Mr. Lawton responded as follows:

I believed that Mr. Piazza exceeded the scope
of authority of his office under statute. I
believed that Mr. Piazza had exposed the
county to significant potential liability.
And I believed that Mr. Piazza did not
apprehend the seriousness of those two
matters and that he did not see any reason to
conduct himself differently in the future.
(Doc. 42-1 at 23.)

When asked if these beliefs were based on

advice from counsel, Defendant Lawton was advised by his counsel
not to answer.

(Id. at 23-24.)

When asked what the sources of

information informed his belief that Plaintiff had exceeded his
authority, Defendants’ counsel again objected: “Object to form of
the question to the extent that it includes attorney-client.
can answer it with that caveat.”

(Doc. 42-1 at 24.)

Plaintiff

responded:
Okay. Based upon my conversations with
the county’s chief solicitor at the time, I
believed that the county had been exposed to
significant liability–-financial liability.
And that in undertaking the actions he did,
Mr. Piazza exceeded the scope of his
authority as county director of elections.
Based upon Mr. Piazza’s own conduct during
the Loudermill hearing, I believe that he did
3

You

not apprehend the seriousness of those two
issues and that he would not refrain from the
same course of conduct in the future.
(Doc. 42-1 at 24-25.)
Defendants describe Defendant Lawton’s response to the inquiry
regarding the basis for his decision to terminate Plaintiff as
follows:
Mr. Lawton testified, inter alia, that he
terminated Plaintiff’s employment with the
County because –- upon advice of counsel –Plaintiff targeted Mr. Griffith in
retaliation for Mr. Griffith’s intended audit
of the Bureau of Elections, exceeded
Plaintiff’s authority and powers as the
County’s Director of the Bureau of Elections
and exposed the County to a potential civil
rights action by Mr. Griffith.
(Doc. 41 at 2-3 (citing Exhibit “A” to the County Defendants’
Appendix, p. 18, 1.1. 17-25, p. 19, 1.1. 1-25, p. 20, 1.1. 1-25, p.
21, 1.1. 1-25, p. 22, 13-25, p.23, 1.1. 1-25)1.)
II. Discussion
The only issue raised with the current motion is whether
Defendant Lawton waived the attorney-client privilege when he
asserted at his deposition that counsel’s advice was the reason
Plaintiff was terminated.

(Doc. 40 at 4.)

“The attorney-client privilege limits the normally broad
disclosure requirements of Federal Rule of Civil Procedure 26,
which provides that relevant but privileged matters are not

1

The Appendix was refiled as Document 42.
4

discoverable.”

Sampson v. School District of Lancaster, 262 F.R.D.

469, 473 (E.D. Pa. 2008) (citing Fed. R. Civ. P. 26(b)(1); Martin
Marietta Materials, Inc. v. Bedford Reinforced Plastics, Inc., 227
F.R.D. 382, 389 (W.D. Pa. 2005)).

In Rhone-Poulenc Rorer Inc. v.

The Home Identity Company, 32 F.3d 851, 861 (3d Cir. 1994), the
Third Circuit Court of Appeals set out the following “traditional
elements of the attorney client privilege that identify
communications that may be protected from disclosure in discovery”:
(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, or his or her
subordinate, 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
purpose 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.
Id. (citing In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3d
Cir. 1979)).

“The privilege forbidding the discovery and admission

of evidence relating to communications between attorney and client
is intended to ensure that a client remains free from apprehension
that consultations with a legal adviser will be disclosed.”

Id. at

862 (citing Hunt v. Blackburn, 128 U.S. 464, 470 (1888); Wigmore, §
2290, at 543).

Rhone-Poulenc noted that because the privilege

serves the interests of justice, it “is worthy of maximum legal
5

protection.”

32 F.3d at 862.

However, its limitation on discovery

also requires that the privilege must be “‘strictly confined within
its narrowest possible limits consistent with the logic of its
principle.’”

In re Grand Jury Investigation, 599 F.2d at 1235

(quoting 8 Wigmore on Evidence § 2291, at 545 (1961)).

The party

asserting attorney-client privilege has the burden of proving that
the privilege applies.

Matter of Grand Jury Empanelled February

14, 1978, 603 F.2d 469, 474 (3d Cir. 1979) (citing United States v.
Lansdorf, 591 F.2d 36, 38 (9th Cir. 1978)).
Rhone-Poulenc also extensively discussed waiver of the
attorney-client privilege, first noting that “[t]here is authority
for the proposition that a party can waive the attorney client
privilege by asserting claims or defenses that put his or her
attorney’s advice in issue in the litigation.”

32 F.3d at 863.

Citing numerous cases where it was determined that the privilege
was waived, Rhone-Poulenc identifies the common thread:
the client has made the decision and taken
the affirmative step in the litigation to
place the advice of the attorney in issue.
Courts have found that by placing the advice
in issue, the client has opened to
examination facts relating to the advice. . .
. The advice of counsel is placed in issue
where the client asserts a claim or defense,
and attempts to prove that claim or defense
by disclosing or describing an attorney
client communication.
32 F.3d at 863 (citing North River Insurance Co. v. Philadelphia
Reinsurance Corp., 797 F. Supp. 363, 370 (D.N.J. 1992); Pittston
6

Co. v. Allianz Insurance Co., 143 F.R.D. 66, 71 (D.N.J. 1992)).
Essentially, Rhone-Poulenc identifies a two-step inquiry into
whether the privilege has been waived due to advice of counsel:
“(1) the assertion of a claim or defense, and (2) an attempt to
prove that claim or defense by disclosing or describing an attorney
client communication.”

Nesselrotte v. Allegheny Energy, Inc., Civ.

A. No. 06-01390, 2008 WL 2858401, at *6 (July 22, 2008).
Plaintiff states that Defendants have asserted numerous
defenses “similar to those asserted in Nasselrote” where the court
found that they “may constitute assertion of a defense” under the
first step of the Rhone-Poulenc analysis.

(Doc. 40 at 6-7.)

Plaintiff asserts that here Defendant Lawton clearly stated that he
terminated Plaintiff’s employment based on the advice of counsel,
thus placing the advice of counsel at issue and waiving the
attorney-client privilege.

(Id.)

Defendants argue that they have not waived the privilege
because their affirmative defenses are not based on advice of
counsel.

(Doc. 41 at 6.)
While advice of counsel may have affected
Defendants’ decision to terminate Plaintiff’s
employment, Defendants have alleged and are
in the process of establishing, inter alia,
Defendants had a legitimate, non-retaliatory
basis for terminating Plaintiff’s employment
with the County. Contrary to Plaintiff’s
bald assertions, Defendants’ answer,
affirmative defenses, responses to
Plaintiff’s discovery requests and the
deposition testimony of Mr. Lawton make it
abundantly clear that Plaintiff was
7

terminated because Plaintiff targeted Mr.
Griffith in retaliation for Mr. Griffith’s
intended audit of the Bureau of Elections,
exceeded Plaintiff’s authority and powers as
the County’s Director of the Bureau of
Elections and exposed the County to a
potential civil rights action by Mr.
Griffith.
(Id. at 6-7 (citing Doc. 27 generally; County Defendants’ answers
to Plaintiff’s interrogatories attached to the County Defendants’
Appendix as Exhibit “E”, generally).)

In arguing against waiver,

Defendants point to authority which establishes that “‘advice of
counsel is not at issue merely because it is relevant, and does not
necessarily become in issue merely because the attorney’s advice
might affect the client’s state of mind in a relevant matter’”
(Doc. 41 at 8 (quoting Nesselrote, 2008 WL 2858401, at *7 (citing
Fidelity and Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516,
520 (E.D. Pa. 1996); Rhone-Poulenc, 32 F.3d at 863))), and the
privilege “‘is not waived by bringing or defending suit’” (id.
(quoting Nesselrote, 2008 WL 2858401, at *7 (citing Barr Marine
Products Co., Inc. v. Borg-Wagner Corp., 84 F.R.D. 631, 635 (E.D.
Pa. 1979)))).
Here Plaintiff does not assert that Defendants waived the
attorney-client privilege merely because advice of counsel is
relevant and might have affected the decision-maker’s state of
mind, nor does he assert that the privilege was waived by defending
the suit.

He alleges specifically and simply that the privilege

was waived because Defendant Lawton testified that he terminated
8

Plaintiff on the advice of counsel and when asked “Anything else?”
Defendant Lawton responded “That’s all at this point.”

(Doc. 40 at

2.)
Defendants do not directly address Lawton’s deposition
testimony that he relied on advice of counsel.

They recognize that

the Third Circuit defines “‘in issue’ as requiring that the client
attempt to prove the claim by ‘disclosing or describing an
attorney-client communication.’”
Poulenc, 32 F.3d at 863).)

(Doc. 41 at 8 n.2 (quoting Rhone-

Here Defendant Lawton disclosed an

attorney-client communication when he said he terminated Plaintiff
on the advice of counsel and his testimony further established that
he relied on the communication in his decision to terminate
Plaintiff. (Doc. 42-1 at 19-25.)

Defendant Lawton’s statement was

made in support of the assertion that he had the authority to
terminate Plaintiff because Plaintiff had exceeded his authority.
(Id.)

The claimed propriety of Plaintiff’s termination is a

defense to Plaintiff’s allegations that his termination violated
federal and state law.

(See Doc. 11.)

Therefore the Rhone-Polenc

factors are met regarding Defendant Lawton’s communications with
his attorney related to advice about Plaintiff’s termination.
Defendants may now point to other bases for the termination
decision but they have not met their burden of establishing that
the attorney-client privilege applies to shield from discovery the
communication relied on by Defendant Lawton which he testified

9

formed the basis of his termination decision.

Not only did he

state that he initially had nothing to add to his statement that he
terminated Plaintiff “on the advice of counsel” (Doc. 42-1 at 19),
he later testified more specifically that he terminated Plaintiff
based on his belief that Plaintiff had exceeded the scope of his
authority under statute and this belief was based on his
conversations with the county’s acting chief solicitor (id. at 23,
24).

Thus, we are not persuaded by Defendant’s argument that

Defendant Lawton did not waive the attorney-client privilege.
Plaintiff’s motion is properly granted regarding communications
between Defendant Lawton and his counsel related to the reasons
counsel advised him to terminate Plaintiff.
III. Conclusion
For the reasons discussed above, Plaintiff’s Motion for
Discovery of Defendants’ Attorney-Client Communications Based on
Waiver of the Attorney-Client Privilege (Doc. 39) is granted to the
extent the communications relied upon by Defendant Lawton in
deciding to terminate Plaintiff are not shielded from discovery by
the attorney-client privilege.

It is also granted to the extent

the discovery deadline is extended for a period of sixty (60) days
following the date of this Order.

(See Doc. 39 at 4.)

Plaintiff’s

motion is denied to the extent he seeks to be allowed to explore

10

all attorney client communications with any witness.2
at 4.)

(See Doc. 39

An appropriate Order is filed simultaneously with this

Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 30, 2015

2

Plaintiff has presented no authority to broaden the scope
of discovery beyond the communications between Defendant Lawton and
counsel to which he testified at his deposition.
11