Bifano et al v. Waymart Borough et al
Filing
37
MEMORANDUM (Order to follow as separate docket entry) re 28 MOTION for Protective Order filed by Frederick J. Glavich, Waymart Borough. Signed by Honorable Malachy E Mannion on 4/26/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH BIFANO and
KEITH RYNEARSON,
:
:
Plaintiffs,
CIVIL ACTION NO. 3:16-0245
:
v.
(JUDGE MANNION)
:
WAYMART BOROUGH and
FREDERICK J. GLAVICH,
Defendants.
:
:
MEMORANDUM
Presently before the court is a motion for a protective order filed by
defendants Waymart Borough (“Borough”) and Frederick J. Glavich (“Police
Chief Glavich”). (Doc. 28). The defendants’ motion is in response to the
request by plaintiffs Joseph Bifano (“Corporal Bifano”) and Keith Rynearson
(“Sergeant Rynearson”) to depose a Borough councilmember, Jane Varcoe
(“Councilmember Varcoe”). The defendants seek to protect confidential
attorney-client communications during closed-door executive meetings with
the solicitor of the Borough, Chris Farrell (“Solicitor Farrell”). Based on the
foregoing reasons, the defendants’ motion is GRANTED IN PART and
DENIED IN PART.
I.
BACKGROUND
On February 11, 2016, the plaintiffs initiated this civil rights action
alleging that the defendants violated Pennsylvania’s Whistleblower Law, 43
PA. STAT. ANN. §1421 et seq., the First Amendment, and that Police Chief
Glavich defamed the plaintiffs under Pennsylvania law. (Doc. 1). The plaintiffs’
dispute revolves around their firing from the Borough’s police department on
January 5, 2016 and the events leading up to their firing. The plaintiffs allege
that their firing was in retaliation for complaints they made about Police Chief
Glavich’s on-duty conduct.
On March 16, 2016, the defendants filed a motion to dismiss the
plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Doc. 8). On December 22, 2016, the court granted in part and denied in part
the motion to dismiss. (Doc. 18). The court also granted leave to the plaintiffs
to amend their whistleblower claim. The plaintiffs did not file an amended
complaint. The defendants answered the plaintiffs’ complaint on January 4,
2017. (Doc. 19).
The court held a case management conference with the parties on
February 7, 2017 and, currently, the parties are engaged in discovery. (See
Doc. 23). The plaintiffs seek to depose Councilmember Varcoe. (Doc. 28 ¶2).
Her deposition is currently scheduled for May 5, 2017. (Doc. 35 at 2). The
plaintiffs believe that Councilmember Varcoe has relevant information
regarding the true reason for their firing based on an email communication the
plaintiffs received directly from her. (See Doc. 36, Ex. D). The plaintiffs also
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seek to depose former mayor of the Borough, Jack Millard,1 and treasurer of
the Borough, Shelly Gogolski (“Treasurer Gogolski”). (Doc. 28 ¶5).
On April 3, 2017, after failed discussions with the plaintiffs’ counsel
regarding the scope of depositions, particularly Councilmember Varcoe’s
deposition, the defendants filed the current motion for a protective order with
a brief in support. (Docs. 28–29). The plaintiffs properly filed a brief in
opposition with exhibits on April 19, 2017, (Docs. 35–36). The defendants filed
a formal reply brief on April 17, 2016, with an attached exhibit. (Doc. 33).
The defendants request that the court issue a broad protective order
prohibiting Councilmember Varcoe, Jack Millard, Treasurer Gogolski,
employees, and officers of the Borough from testifying or revealing the
substance of any discussions that took place in executive sessions/meetings
held in the presence of Solicitor Farrell based on the attorney-client privilege.
(Doc. 28-1). The defendants’ motion and brief in support refer to “executive
sessions” in the plural, indicating that more than one session or meeting took
place. (Doc. 28 ¶3; Doc. 29 at 2). The plaintiffs’ brief in opposition discusses
1
The plaintiffs’ complaint and the defendants’ motion and proposed
order refer to the former mayor as Jack Millard. (Doc. 1 ¶21; Doc. 28 ¶5; Doc.
28-1). The plaintiffs’ brief in opposition and the exhibit of the minutes from the
September 8, 2015 meeting refer to the former mayor as John Millard. (Doc.
35 at 1; Doc. 36 at 5). The court will continue to refer to the former mayor as
Jack Millard in accordance with the plaintiffs’ complaint until the parties clarify
otherwise.
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a September 8, 2015 executive meeting that took place at some point during
a regular, public meeting of the Borough. (See Doc. 36, Ex. A).
Councilmember Varcoe was in attendance at this meeting; Solicitor Farrell
was excused from attendance. (See id.). Jack Millard was not in attendance
and, instead, a letter was submitted on his behalf and read into the record
noting his resignation as mayor of the Borough, effective as of the date of the
meeting. (Id., Ex. A at 4). No guests or citizens from the public were in
attendance at the meeting. (Id., Ex. A at 2).
The defendants’ reply refers to an executive meeting held on October
13, 2015 after the close of a regular, public meeting held on that date. (See
Doc. 33-1). The meeting was called by Solicitor Farrell at 7:14 p.m.
specifically for the purpose of “discuss[ing] possible litigation within the police
department.” (Id. at 5). Jane Varcoe was likely in attendance at this executive
meeting. One citizen from the public was in attendance at the regular
meeting. (Id. at 2). In addition, a borough supervisor from Uniondale,
Pennsylvania attended the regular meeting. (Id. at 4).
The defendants have not indicated any other specific dates where
executive meetings occurred, although the court is sure that more did in fact
occur either with or without Solicitor Farrell present. (See, e.g., Doc. 36, Ex.
C). The court’s discussion, however, will be limited to communications during
the above two meetings as these are the only two dates where the parties
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have provided the court with sufficient facts to make a determination with
respect to privileged information.
II.
DISCUSSION
Generally, the scope of discovery is broad. “Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case.” FED. R. CIV. P.
26(b)(1) (emphasis added). The information need not be admissible to be
discoverable. Id. Privileged information, however, is clearly not discoverable.
The court must limit discovery if it determines that the information sought is
outside the proper scope of discovery. FED. R. CIV. P. 26(b)(2)(iii).
A motion for a protective order is a proper method for challenging
inappropriate discovery requests. The court’s general authority to issue a
protective order is governed by Federal Rule of Civil Procedure 26©, which
reads, in pertinent part:
A party or any person from whom discovery is sought
may move for a protective order in the court where
the action is pending—or as an alternative on matters
relating to a deposition, in the court for the district
where the deposition will be taken. The motion must
include a certification that the movant has in good
faith conferred or attempted to confer with other
affected parties in an effort to resolve the dispute
without court action. The court may, for good cause,
issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue
burden or expense.
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FED. R. CIV. P. 26(c)(1). The court may grant various forms of relief under
Rule 26©, including “forbidding disclosure of discovery” and “forbidding inquiry
into certain matters, or limiting the scope of disclosure of certain matters.”
FED. R. CIV. P. 26(c)(1)(A), and (D). The decision to grant a protective order,
like other rulings regarding the scope of discovery, is within the court’s
discretion. See Shingara v. Shiles, 420 F.3d 301, 305 (3d Cir. 2005); Mass.
Sch. of Law at Andover, Inc. v. Am. Bar. Ass’n, 107 F.3d 1026, 1032 (3d Cir.
1997).
The party seeking the protective order bears the burden of
demonstrating “good cause” for that protection. Glenmede Trust Co. v.
Thompson, 56 F.3d 476, 483 (3d Cir. 1995); Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786–87 (3d Cir. 1994). “‘Good cause’ is
established when it is specifically demonstrated that disclosure will cause a
clearly defined and serious injury.” Glenmede, 56 F.3d at 483. There must be
a “particular need for protection.” Cipollone v. Liggett Grp., Inc., 785 F.2d
1108, 1121 (3d Cir. 1986). “‘Broad allegations of harm, unsubstantiated by
specific examples or articulated reasoning,’ do not support a good cause
showing.” Pansy, 23 F.3d at 786 (quoting Cipollone, 785 F.2d at 1121).
Here, the defendants seek protection because they believe the plaintiffs
seek information that is not discoverable—i.e., information that is protected
by the attorney-client privilege. FED. R. CIV. P. 26(b)(1). Similar to the burden
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on the party seeking a protective order, the party asserting the attorney-client
privilege bears the burden of showing that the materials or communications
at issue are protected from disclosure. Memory Bowl v. N. Pointe Ins. Co.,
280 F.R.D. 181, 186 (D.N.J. 2012); Scott Paper Co. v. United States, 943 F.
Supp. 489, 499 (E.D. Pa. 1996). This comports with Rule 26 which explicitly
provides that a party withholding information based on a privilege must
“expressly make [that] claim” and must “describe the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in
a manner that, without revealing the information . . ., will enable other parties
to assess the claim.” FED. R. CIV. P. 26(b)(2)(5)(A).
The purpose of the attorney-client privilege2 is “to encourage full and
frank communications between attorneys and their clients and thereby
promote broader public interests in the observance of law and administration
of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The
2
Privilege law in federal courts is governed by the federal rules of
evidence. Federal Rule of Evidence 501 provides that federal law governs a
claim of privilege except in cases where state law supplies the rule of decision
regarding a claim or defense. FED. R. EVID. 501 (incorporating Erie R. Co. v.
Tompkins, 304 U.S. 64 (1983)). Where a federal claim is initiated in court with
a state law claim, the federal rule will apply. Wm. T. Thompson Co. v. Gen.
Nutrition Corp., Inc., 671 F.2d 100, 104 (1982). The plaintiffs’ complaint
contains a federal constitutional claim along with supplemental state law
claims and is, thus, governed by federal privilege law.
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traditional articulation of the attorney-client privilege adopted in this circuit
contains the following elements:
(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 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 © for the purpose of securing
primarily either (I) an opinion on law or (ii) legal
services or (iii) assistance in some legal proceeding,
and not (d) for the purpose of committing a crime or
tort; and (4) the privilege has been (a) claimed and (b)
not waived by the client.
Maldonado v. New Jersey, 225 F.R.D. 120, 127 (D.N.J. 2004) (quoting In re
Grand Jury Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979)). “The privilege
covers communications made by the client as well as the attorney and it
‘exists to protect not the giving of professional advice to those who can act on
it but also the giving of information to the lawyer to enable him to give sound
and informed advice.’” Lawless v. Del. River Port. Auth., No. 11-7306, 2013
WL 180347, at *1 (E.D. Pa. Jan. 16, 2013) (quoting Upjohn, 449 U.S. at 390).
The privilege belongs to the client and only the client may waive it. Haines v.
Liggett Grp. Inc., 975 F.2d 81, 90 (3d Cir. 1992).
Generally, information within the scope of the attorney-client privilege
will be “zealously protected.” Id. (quoting 8 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure §2017 (1970)). There are, however,
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limitations. The privilege extends to the communications between the attorney
and his or her client, but not to the disclosure of underlying facts incorporated
into the communication. Upjohn, 449 U.S. at 395–96. In addition, “[b]ecause
the attorney-client privilege obstructs the truth-finding process, it is construed
narrowly.” Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d
1414, 1423 (3d Cir. 1991). The application of the privilege must be
determined on a “case-by-case” basis, Upjohn, 449 U.S. at 396–97, and it
“protects only those disclosures—necessary to obtain informed legal
advice—which might not have been made absent the privilege,”
Westinghouse, 951 F.2d at 1423–24 (quoting Fisher v. United States, 425
U.S. 391, 403 (1976)) (emphasis in original).
Here, the defendants have sustained their burden of proving the
attorney-client privilege with respect to communications that took place at the
October 13, 2015 executive meeting. They have not sustained their burden
with respect to the September 8, 2010 meeting. Nor have they sustained their
burden with respect to any other date where similar executive meetings took
place.
Under Pennsylvania’s Borough Code, 8 PA. CONS. STAT. §101 et seq.,
a borough’s solicitor has primary control over legal matters of the borough. 8
PA. CONS. STAT. §1116. The solicitor must be licensed to practice law in the
Commonwealth and he or she “serves at the pleasure of [borough] council.”
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Id. The solicitor has several duties, including: (1) preparing legal documents
at the request of council or the mayor; (2) prosecuting or commencing actions
on behalf of the borough; and (3) furnishing written legal opinions to council,
committees of council, the mayor, or a head of a borough department when
requested by that body or person acting in their official capacity.
§1117(a)(1)–(3).
The solicitor serves as the Borough’s attorney, inclusive of its
constituent parts. The privilege will, therefore, extend to the body’s governing
parts—i.e., council— or those acting on the Borough’s behalf in their official
capacity. See 8 PA. CONS. STAT. §1117(a)(3) (requiring the solicitor to provide
legal opinions at the request of council, committees of council, the mayor, or
a head of a borough department); see also Upjohn, 499 U.S. at 394
(extending the attorney-client privilege to communications between corporate
counsel and employees acting within the scope of their duties where the
communications were made in order to obtain legal advice). However, only
the Borough, acting through its governing body, the council, may waive the
attorney-client privilege. See Bd. of Supervisors of Milford Twp. v. McGogney,
13 A.3d 569, 574 (Pa. Commw. Ct. 2011).
With respect to communications made during the September 8, 2015
executive meeting, the defendants’ request for protection is denied. The
existence of the attorney-client privilege presumes that a communication was
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made either to or from an attorney, in this case Solicitor Farrell, for the
purpose of seeking or rendering legal advice. There is no indication that
Solicitor Farrell was in attendance at the September 8, 2015 meeting. In two
places, the minutes from the regular meeting indicate that Solicitor Farrell was
excused from attendance. (Doc. 36, Ex. A at 1–2). The plaintiffs raised this
issue and the defendants did not respond. As such, the defendants have not
met their burden of showing that a communication to or from an attorney
actually took place and, therefore, that the privilege applies to that meeting.
With respect to the October 13, 2015 executive meeting, it is clear that
the purpose of that meeting was to give legal advice and obtain the necessary
information needed for legal advice. The regular meeting minutes clearly
indicate that the purpose of the executive meeting was “to discuss possible
litigation within the police department.” (Doc. 33-1 at 5). Solicitor Farrell was
clearly in attendance as he is the one who called the meeting to begin after
the regular meeting adjourned. (See id.). Councilmember Varcoe and
Treasurer Gogolski appear to have been in attendance at the executive
meeting as they clearly attended the regular meeting immediately preceding
the executive meeting. (Id. at 1). The only parties unrelated to the Borough
noted as being in attendance at the regular, public meeting included a citizen
and a borough supervisor from Uniondale, Pennsylvania. There is no
indication that these third-parties stayed beyond the regular meeting and were
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allowed to sit in on the executive meeting. The plaintiffs have not argued
otherwise. Thus, at this stage the Borough is entitled to protection for
communications made during the October 13, 2015 executive meeting. The
defendants’ request will, therefore, be granted with respect to that meeting,
with limitations.
The defendants request a protective order prohibiting Councilmember
Varcoe, Jack Millard, Treasurer Gogolski, employees, and officers of the
Borough from testifying or revealing the substance of any discussions that
took place in all executive meetings held in the presence Solicitor Farrell. This
request is too broad and the defendants have not shown entitlement to such
a broad order in the absence of specific meeting dates and additional facts.
The Borough is, however, entitled to protection of communications that took
place at the executive meeting held on October 13, 2015 at approximately
7:15 p.m. after the regular, public meeting adjourned.
In accordance with the above, the court will issue an order prohibiting
the plaintiffs’ counsel from inquiring into communications that took place at
the October 13, 2015 executive meeting at the deposition of Councilmember
Varcoe and the depositions of any other borough officials in attendance at
that executive meeting as indicated by the regular meeting minutes. See FED.
R. CIV. P. 26(c)(1)(D). With respect to any other alleged executive meetings
between Solicitor Farrell and certain Borough officials or employees, the court
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is without sufficient facts to make a determination. The court would need more
information to properly determine if the attorney-client privilege applied as that
determination must be made on a case-by-case basis. Upjohn, 449 U.S. at
396–97. A blanket statement that Solicitor Farrell was in attendance at a
Borough meeting at some unspecified time to discuss unspecified matters will
not suffice.
In addition, though the plaintiffs’ counsel may not inquire into
discussions that took place at the October 13, 2015 executive meeting,
counsel may inquire as to whether the particular official was actually in
attendance at that meeting. Counsel may also inquire as to whether any thirdparties were in attendance at the executive meeting, information that would
not be known without some initial inquiry. The plaintiffs’ counsel should
continue to adhere to the court’s accompanying order irrespective of a
deponents answer.
III.
CONCLUSION
Based on the above, the defendants’ motion for a protective order,
(Doc. 28), is GRANTED IN PART and DENIED IN PART. The scope of
discovery will be limited to protect the Borough from disclosure of information
protected by the attorney-client privilege. The plaintiffs’ counsel will be
prohibited from inquiring into communications that took place at the October
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13, 2015 executive meeting held after approximately 7:15 p.m. at the
deposition of Councilmember Varcoe and the depositions of any other
borough officials in attendance at that executive meeting as indicated by the
regular meeting minutes attached to the defendants’ reply brief. (Doc. 33-1).
An appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: April 26, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0245-02.wpd
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