Opinion
C.A. No: 20604-NC.
Submitted: February 10, 2004.
Decided: April 7, 2004.
Upon Consideration of Plaintiff's Motions for Protective Orders: GRANTED in part, DENIED in part.
Scott G. Wilcox, Esquire, Collins J. Seitz, Jr., Esquire and Max B. Walton Esquire, Connolly Bove Lodge Hutz, LLP, Wilmington, Delaware, for Plaintiff.
Timothy P. Mullaney, Sr., Esquire, New Castle County Government Center, New Castle, Delaware, for Plaintiff.
Richard L. Abbott, Esquire, The Bayard Firm, Wilmington, Delaware, for Defendant.
Shawn P. Tucker, Esquire, Duane Morris, LLP, Wilmington, Delaware, for Defendant.
MEMORANDUM OPINION
FACTUAL BACKGROUND
On October 10, 2003, New Castle County ("County") filed the instant action against Christiana Town Center ("Christiana") seeking injunctive relief prohibiting Christiana from interfering with the County's inspections at the Christiana Town Center work site and any necessary remediation of violations. The County also seeks injunctive relief to stop Christiana from further violating the stop work orders and reimbursement for remediation costs, penalties, and fees assessed against Christiana. Christiana filed counterclaims and argues that some of the continuing violations of the stop work order are stayed by C.A. No. 03A-10-006-RSG. Christiana also claims that the County's September 24, 2003 stop work order is void and that the County is not able to undertake remedial measures at the site. Furthermore, Christiana claims that its work was performed in accordance with an approved Erosion and Sediment Plan.
NATURE AND STAGE OF THE PROCEEDINGS
The County initially sought a stay of discovery pending the outcome of mediation. In the alternative, the County sought a protective order to prevent the noticed depositions of John Connell ("Connell") and John Gysling ("Gysling"), and to prevent any potential attempt by Christiana to depose Thomas Hubbard ("Hubbard"). The County filed a separate motion for a protective order to preclude the deposition of Sherry L. Freebery ("Freebery"). On December 12, 2003, this Court granted the County's motion to stay discovery. Mediation was held on December 19, 2003 and the stay of discovery remained in place until February 10, 2004. The County's motions for protective orders are now fully briefed and ripe for decision.
New Castle County v. Christiana Town Center, LLC, Del. Ch. C.A. No. 20604-NC, Lamb, V.C. (Dec. 12, 2003) (ORDER) (staying all discovery until January 7, 2004).
SUMMARY OF THE ARGUMENTS
The County sets forth the following arguments in support of their motion for a protective order to preclude the deposition of Freebery, the County's Chief Administrative Officer: (1) the information about which Christiana seeks to depose her on is irrelevant to this case; (2) Christiana can obtain any relevant, non-privileged information through its own witnesses and the series of depositions it has noticed; and, (3) the deposition would unduly interfere with Freebery's governmental duties. Christiana indicates that despite the County's claim that Freebery has not had any involvement with this case, Hubbard confirmed that she was one of the two people involved in the creation and issuance of a press release directly related to this case.
The County argues that the depositions of Connell and Gysling would be duplicative and unnecessary because the facts have already been gleaned from other witnesses deposed by Christiana. In response, Christiana claims that Inspector Connell and County Engineer Gysling have direct knowledge regarding the Christiana Town Center site. In reference to Connell, Christiana indicates that he provided an affidavit supporting the County's verified complaint in this action and that Stephen Hokuf ("Hokuf") delegated the responsibilities of conducting daily site visits and preparation of written inspection reports to Connell. As a result, Christiana maintains that Connell's deposition is essential because none of the witnesses deposed thus far have visited and inspected the site as frequently and thoroughly.
Christiana maintains that the deposition of Gysling is necessary because he reviewed and approved a revised Erosion and Sediment Control Plan for the site that the County claims was never approved. Christiana calls into question whether or not Hokuf is legally permitted to perform some of the assignments he conducted while Gysling was on vacation for a few weeks. As such, Christiana claims that Gysling would have information relevant to that issue.
The County indicates that Hubbard, a public information officer for the County, has not been involved with this action or with Christiana. Despite their acknowledgment that Hubbard issued a press release, the County argues that it is not relevant or essential to Christiana's case regarding site compliance issues. Christiana argues the deposition Hubbard must be taken in order to determine the veracity of the claims made in the County's motion for protective order in connection with Freebery. Christiana asserts that the County cannot object to the taking of a deposition that is necessary to determine if that motion should be granted or denied. As press secretary, Christiana claims that Hubbard is the only known County employee who can confirm Freebery's involvement in this case.
DISCUSSION
Discovery should be allowed unless the Court is satisfied that the administration of justice will be impeded by such an allowance.
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
CHANCERY COURT RULE 26(b)(1).
Fish Eng'g Corp. v. Hutchinson, 162 A.2d 722, 725 (Del. 1960) (citations omitted).
CHANCERY COURT RULE 26(b)(1).
The Court shall limit the frequency or extent of the use of discovery, by acting upon its own initiative after reasonable notice or upon motion, if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake. A court may grant a motion for protective order where justice requires to protect a party from "annoyance, embarrassment, oppression, or undue burden or expense" in connection with requests for discovery.
Id.
A. MOTION FOR PROTECTIVE ORDER TO PRECLUDE THE DEPOSITION OF SHERRY L. FREEBERY
In the connection with its motion to preclude the deposition of Ms. Freebery, the County argues that high-ranking government officials are "generally entitled to limited immunity from being deposed." While applicable Delaware law is limited, courts have recognized that a request to depose a high-ranking government official is subject to a heightened standard of review. The burden that a deposition would place on a high ranking governmental official must be given special scrutiny even though granting a protective order is the exception rather than the rule. Under the persuasive heightened standard of review, depositions of high ranking governmental officials are not permitted unless the party seeking deposition can show that: "(1) the deposition is necessary in order to obtain relevant information that cannot be obtained from any other source, and (2) the deposition would not significantly interfere with the ability of the official to perform his governmental duties." The first prong of this test is strictly imposed such that the deposition only be permitted if the high ranking government official has unique, personal knowledge that cannot be obtained elsewhere. The limited immunity provided to high ranking government officials ensures that they have the necessary time to dedicate to the performance of their governmental duties and also "protect[s] the mental processes of executive and administrative officers in order [to] promote open channels of communication within government." Whether the government official is in active service or has left the public arena, courts have permitted deposition if the high-ranking official was personally involved in a material aspect of the claim. "Mere knowledge or awareness of information that may be helpful if discovered is insufficient." The courts will require the high-ranking official submit to deposition in litigation not specifically directed at his conduct if: 1) extraordinary circumstances are shown; or 2) the official is personally involved in a material way.
Hankins v. City of Philadelphia, 1996 WL 524334 (E.D.Pa.).
See Jones v. Hirschfield, 219 F.R.D. 71 (S.D.N.Y. 2003); Marisol v. Giuliani, 1998 WL 132810 (S.D.N.Y.).
Marisol A. 1998 WL 132810, at *2.
Id. (citing Martin v. Valley Nat'l Bank of Arizona, 140 F.R.D. 291, 314 (S.D.N.Y. 1991)).
Id.
L.D. Leasing Corp. v. Crimaldi, 1992 WL 373732 (E.D.N.Y.) (citing United States v. Morgan, 313 U.S. 409, 422 (1941); Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 586-87 (D.C. Cir. 1985); Ernest and Mary Hayward Weir Found v. United States, 508 F.2d 894, 895 (2d Cir. 1974) ( per curiam); In Re Franklin Nat'l Bank Sec. Litig., 478 F. Supp. 577, 581 (E.D.N.Y. 1979).
See Am. Broad. Co. v. U.S. Info. Agency, 599 F. Supp. 765, 769 (D.D.C. 1984) (the Court determined that the United States Information Agency Director should be subjected to deposition given that he was the sole person responsible for the creation of the documents in question); Gibson v. Carmody, 1991 WL 161087 (S.D.N.Y.) (the Court allowed the deposition of a former New York City Police Commissioner, principally because he personally participated in proceedings related to or stemming from the investigation of the facts underlying the case). See also Sandstrom v. Rosa, 1996 U.S. Dist. LEXIS 11923 (S.D.N.Y.).
United States v. Wal-Mart Stores, 2002 WL 562301 (D. Md.).
Id. at *3.
Under the first prong of the Morgan two-prong test, the County argues that Freebery's knowledge is not "unique personal knowledge" regarding the merits of this case. The County claims that Christiana is also unable to satisfy the second prong of the analysis because the proposed deposition would clearly interfere with Freebery's official duties. According to the County, the press release in question and the content thereof are irrelevant to the merits of this action. The County indicates that the press release involves an investigation into allegations of misconduct concerning a certified construction review report that is being conducted by County Attorney, Timothy P. Mullaney, Sr. Esq. The County maintains that the press release nor the investigation deals with the County's ability to enforce the stop work order to inspect and remediate the site. As such, the County claims that any limited knowledge Freebery may have can be obtained for other less senior County officials. In addition, the County indicates that several officials within the Department have the same knowledge as Freebery in greater detail. Specifically, the County acknowledges the noticed depositions of Charles L. Baker ("Baker"), General Manager of the Department of Land Use; George O. Haggarty ("Haggarty"), Assistant General Manager of the Department of Land Use and Code Official; and, Stephen D. Hokuf, Jr., Civil Engineer I of the Department of Land Use and the Engineer working on the continuing Christiana Town Center violations.
Affidavit of Charles L. Baker at 3 (stating that "[t]hese actions were pursued without reliance upon or approval from the County Chief Administrative Officer Sherry L. Freebery. At no point has Ms. Freebery participated in the day-to-day administration or decision making relating to these actions or any of the County's activities related to regulatory enforcement at the Christiana Town Center site . . . I am personally aware of several department officials who have been more closely involved in the ongoing controversy, and whose knowledge of the controversy surpasses that of Ms. Freebery in both breadth and detail." (The officials mentioned include Charles L. Baker, George Haggerty, and Stephen D. Hokuf, Jr.)).
It appears to the Court that Freebery does not possess any special knowledge related to the material issues of this case that cannot be obtained from other county employees. Indeed, if she was involved in preparing a press release she undoubtedly obtained the information used from other county employees. Plaintiff's motion for a protective order as to Freebery is GRANTED.
B. MOTION FOR PROTECTIVE ORDER FOR JOHN CONNELL AND JOHN GYSLING
The County argues that the depositions of Connell and Gysling will simply result in a rehashing of the facts already obtained from other witnesses that have been deposed. Specifically, the County indicates that Christiana has already deposed Hokuf and Haggarty who are the individuals most knowledgeable about the Christiana Town Center site and the facts of this case. According to the County, Connell's testimony would be duplicative of the information provided by Hokuf in his deposition because Connell performed the inspections under the direction of Hokuf, who met with him every day regarding his site inspection reports. The County concedes that Connell provided an affidavit supporting their Verified Complaint in this action, however, the County contends that the information contained in the affidavit concerns an undisputed point. Christiana argues that the information provided in Connell's affidavit addresses different issues than that of the affidavit provided by Hokuf. Christiana indicates that, upon being deposed, Hokuf verified that Connell and Gysling have direct knowledge concerning the Christiana work site. Christiana maintains that Connell personally conducted site inspections and completed site inspection reports. Therefore, Christiana argues that Connell has information distinguishable from that possessed by Hokuf.
The Court notes that Christiana provided copies of inspection reports signed by Connell and Gysling. See Def. Exhibit 7 8.
The County's argument with respect to Gysling is that Christiana has or will have access to depose higher-level County employees. In fact, the County points out that Christiana has already deposed Haggerty, Assistant General Manager of the Department of Land Use, who is Gysling's supervisor. Accordingly, the County asserts that there is no reason to depose Gysling, as his testimony would be duplicative of Baker, Hokuf and Haggerty. Christiana believes that Gysling, who is Hokuf's supervisor, reviewed and approved a revised Erosion and Sediment Control Plan for the Christiana Town Center site based upon the deposition testimony of Hokuf. Hokuf also took over responsibility for the site from Gysling and handled matters while he was away on vacation.
The Court finds that the discovery sought by Christiana, to depose Connell and Gysling is not unreasonably cumulative or duplicative. The County acknowledges that Connell did perform inspections of the Christiana Town Center site and that he provided an affidavit supporting the County's verified complaint in this action. Gysling is Hokuf's direct supervisor and would therefore be privy to information not readily known by Hokuf. Based upon the evidence presented, it is clear that both Connell and Gysling have personal knowledge surrounding this case including inspection of the Christiana Town Center site. Accordingly, the County's motions for protective order with respect to John Connell and John Gysling are DENIED.
C. MOTION FOR PROTECTIVE ORDER FOR THOMAS HUBBARD
The County argues that Hubbard has not had any involvement with Christiana Town Center or this action with the exception of the issuance of a press release by New Castle County. As previously mentioned, the County claims that the issuance of the press release is not relevant or essential to Christiana's site compliance issues in this case. Christiana maintains that Hubbard's deposition is required to determine the validity of the claims made in the County's motion for protective order with respect to Freebery. Christiana also alleges that Hubbard previously indicated that Freebery had decision-making involvement regarding the Christiana Town Center site. Since the County has also objected to the deposition of Freebery, Christiana argues that the deposition of Hubbard is necessary to further explore the issues set forth in connection with that motion. Christiana claims that Hubbard's knowledge is unique and different from all other witnesses that they plan to depose.
Hubbard is in fact the contact listed on the New Castle County press release. While the County may be correct that the issuance of the press release is not necessarily essential to Christiana's site compliance issues, it is alleged that he told counsel for Christiana that the press release was created by the "Law Department" and "Sherry." The County has objected to the deposition of Freebery indicating that she has had no personal involvement. Based upon the arguments set forth, it is not unreasonable to explore Hubbard's personal knowledge of this case, including but not limited to any information surrounding Freebery's potential involvement in the decision making as to the site. As such, the County's motion for protective order for Hubbard is DENIED.
Def. reply brief at 8, note 4.
The Court has granted the motion as it pertains to Ms. Freebery. Should it be developed that Ms. Freebery was actively involved in decision making as to the matters raised in this action, the Court would entertain a motion to vacate that order.
CONCLUSION
Considering the facts and circumstances of this case, the discovery requested by Christiana is not unduly burdensome, unreasonably cumulative or duplicative, and is relevant to the subject matter involved in the instant action. Accordingly, the County's motions for protective orders for John Connell, John Gysling and Thomas Hubbard are DENIED. As to Sherry Freebery, the motion is GRANTED.
IT IS SO ORDERED.