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John Lawless v. Delaware River Port Authority

January 15, 2013

JOHN LAWLESS,
PLAINTIFF,
v.
DELAWARE RIVER PORT AUTHORITY,
DEFENDANT.



The opinion of the court was delivered by: DuBois, J.

MEMORANDUM

I.INTRODUCTION

Plaintiff John Lawless claims, inter alia, that his former employer, the Delaware River Port Authority ("Port Authority"), violated the Americans with Disabilities Act when it terminated Lawless. During depositions of several Commissioners and other representatives of the Port Authority, defense counsel objected to certain testimony on attorney-client privilege grounds. Presently before the Court is Lawless's Motion to Compel that testimony. For the reasons set forth below, the Court denies the motion.

II.BACKGROUND

Lawless was the Corporate Secretary of the Port Authority. He was terminated when the Board of Commissioners passed a resolution consolidating the Corporate Secretary position with the Office of General Counsel. (Mot. Ex. 1 at 8.) Lawless claims, inter alia, that his termination was unlawfully motivated by his disabilities -- alcoholism and Post Traumatic Stress Disorder, both arising from an incident when he was twelve-years old in which he was held hostage at gunpoint. (Compl. at ¶¶10-13, 64-70.)

The resolution at issue was adopted at a meeting of the Board of Commissioners of the Port Authority. (Mot. Ex. 1 at 8.) While most of the meeting was public, the Board went into closed "Executive Session" to discuss Lawless's termination. (Id.) Former General Counsel Richard Brown and Port Authority attorneys from Duane Morris and Archer & Greiner were present at the Executive Session in addition to Port Authority Commissioners and executives. (Mot. Ex. 3, Estey Dep. at 84-85.)

During discovery depositions, defense counsel objected to certain testimony regarding what was said at the closed session on attorney-client privilege grounds. Lawless seeks to compel that testimony.

III.LEGAL STANDARD

Under Third Circuit law, attorney-client privilege 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 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 ...


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