Judge denies plaintiff's motion to compel testimony in DRPA wrongful termination case

By Jon Campisi | Jan 21, 2013

The former corporate secretary for the Delaware River Port Authority who is suing the

agency in federal court over claims that he was unlawfully terminated due to his disabilities has had his motion to compel certain testimony that arose out of depositions of several DRPA commissioners and other representatives denied.

John Lawless filed suit in late 2011 at the federal court in Philadelphia against the DRPA, which operates four vehicular bridges and the PATCO train line between Pennsylvania and New Jersey.

Lawless claims that he was fired from his job with the bistate agency in 2010 after six years of employment due to his admitted alcoholism and Post Traumatic Stress Disorder, two things he blames on a childhood incident in which he was held hostage at gunpoint.

The agency, however, disputes that the termination had to do with any disabilities; it claims Lawless was merely let go because of the fact that DRPA commissioners decided to consolidate the position of corporate secretary with that of the Office of General Counsel.

Lawless claims his firing violated the Americans with Disabilities Act.

In a Jan. 15 memorandum and order, U.S. District Judge Jan E. DuBois, sitting in the Eastern District of Pennsylvania, denied a motion by Lawless to compel the testimony of the DRPA officials that occurred during their respective depositions.

During the depositions, defense attorneys objected to certain testimony on attorney-client privilege grounds, the record shows.

According to background information on the case, the resolution to merge the two corporate positions was adopted at a commissioners’ meeting.

While the meeting itself was public, the record shows, the board members discussed Lawless’s termination during a non-public, closed-door executive session.

Former DRPA General Counsel Richard Brown and DRPA attorneys from the firms Duane Morris and Archer & Greiner attended the executive session as did the DRPA commissioners and certain other executives, according to the judicial memorandum.

During the subsequent discovery depositions, defense attorneys objected to certain testimony regarding what was said at the closed session because of attorney-client privilege.

Lawless, however, sought to compel that testimony, arguing that attorney-client privilege does not apply to parts of the discussions at the DRPA executive session and because even if it does apply, it had been waived.

Lawless had asserted that some of the executive session discussions may not have involved seeking legal advice, while the DRPA argued that everything that was said during the session was in the context of seeking legal advice and is therefore non-discoverable.

DuBois wrote that the court agrees with the DRPA that everything stated during the executive session is privileged.

“Lawless claims that defense counsel’s objections to deposition questions were so broad that he was unable to ascertain whether any discussions at the Executive Session are not covered by attorney-client privilege,” the memorandum states. “The Court rejects that argument.”

Because the court concludes that the discussions at the executive session were all related to obtaining legal advice, the attorney-client privilege applies to “everything said at the Executive Session.”

DuBois also wrote that re-deposing the DRPA commissioners who attended the executive session, as Lawless requests, is inappropriate.

“Nothing prevented plaintiff’s counsel from asking the Commissioners at their depositions, ‘Did you have any reservations about terminating Lawless, and if so, what were they?’” DuBois wrote.

Lastly, DuBois determined that the DRPA is not putting forward privileged information in a selective, misleading and unfair manner so as to present a one-sided story to the court.

If anything, the judge stated, a certain statement by DRPA CEO John Matheussen during his deposition hurts the DRPA’s case because it shows that some commissioners felt that Lawless’s termination may not have been justified.

During the exchange, Matheussen, answering a question about whether he recalled any of the commissioners expressing their own views as to whether they thought that Lawless’s termination was appropriate, responded by saying, “I recall that there were questions as to whether or not – how it was done, why it was done. There were probably some Commissioners who expressed reservations.”

DuBois concluded that Matheussen’s statement, while a waiver of attorney-client privilege, does not warrant any further disclosure.

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