United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
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.
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.
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).
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 seek to depose
former mayor of the Borough, Jack Millard,  and treasurer of
the Borough, Shelly Gogolski (“Treasurer
Gogolski”). (Doc. 28 ¶5).
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).
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 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).
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).
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 have provided the court with
sufficient facts to make a determination with respect to
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).
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, ...