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Scanlon v. Bricklayers and Allied Craftworkers

April 23, 2007


The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge



This case was referred to the undersigned by the Hon. Richard J. Arcara on December 9, 2005, for all pretrial matters. (Doc. No. 4). The matter is presently before the court on Plaintiff's motion to compel discovery, filed October 31, 2006. (Doc. No. 16).


This action was commenced on September 1, 2005 by Kevin Scanlon ("Scanlon" or "Plaintiff") alleging Defendants, Bricklayers and Allied Craftworkers Local No. 3 ("the Union"), the Buffalo Chapter Joint Apprenticeship Training Committee (" the J.A.T.C."), and Mr. Dan Rose, individually and in his capacity as the Union President, and J.A.T.C. Chairman ("Rose"), violated Plaintiff's rights under 29 U.S.C. §411,*fn2 the Labor Management Reporting and Disclosure Act of 1959 (LMRDA) ("the Act"), when the Defendants terminated Plaintiff from employment with the J.A.T.C. and from membership in the Union without notice of charges or a hearing permitting Plaintiff to challenge the charges, or to present evidence in his own defense. Specifically, Plaintiff claims that Defendants violated "his due process rights, right to a fair hearing, and freedom of speech rights arising under and guaranteed by" §411(a)(2) and (a)(5) of the Act . Complaint ¶ 2. Plaintiff further asserts Rose, while Union president, used physical violence and intimidation to obstruct Plaintiff's due process rights under the Union's constitution and bylaws. Complaint ¶ 9.

Plaintiff filed the instant motion to compel discovery (Doc. No. 16) on October 31, 2006 ("Plaintiff's Motion"), supported by the attached Affirmation of E. Peter Pfaff, Esq.(" First Pfaff Affirmation"), counsel for Plaintiff ("Pfaff") . Specifically, Plaintiff's Motion requests that Rose be directed to appear for an oral deposition pursuant to Fed. R. Civ. P. 30, and seeks discovery of the minutes of the November 19, 2004 and March 11, 2005 meetings of the J.A.T.C.. In opposition, Defendants filed, on November 14, 2006, the Affirmation of Robert L. Boreanaz, Esq. ("Boreanaz Affirmation"), counsel for Defendants ("Boreanaz") (Doc. No. 18).

Oral argument on Plaintiff's motion was conducted December 4, 2006. At oral argument, the court requested the parties file additional legal memoranda, and that Defendants submit for in camera review the documents for which Plaintiff seeks disclosure. The court denied, on the record (Doc. No. 16) Plaintiff's request that Defendants produce former Union officer and J.A.T.C. employee Scott Benk ("Benk") for deposition, and reserved decision on Plaintiff's other requests.

On December 14, 2006, Defendants filed a memorandum of law ("Defendants' Memorandum"), attached to which are the Affidavits of Robert L. Boreanaz, Esq., ("Boreanaz Affidavit") and Eugene W. Salisbury, Esq., the attorney for the J.A.T.C. ("Salisbury Affidavit"). On December 22, 2006, Plaintiff filed a Memorandum in Support of Motion to Compel ("Plaintiff's Memorandum") (Doc. No. 25), attached to which is an Affirmation of E. Peter Pfaff, Esq. ("Second Pfaff Affirmation"), and portions of the October 19, 2006 deposition testimony of James Clark Logan ("Logan"), who is a J.A.T.C. member and a trustee of the Apprenticeship Fund ("Logan Deposition"). Based on the following, Plaintiff's motion is GRANTED in part and DENIED in part.


At all times relevant Plaintiff was a laborer and Union member who participated in the Union's Apprenticeship Program ("Apprenticeship Program"). Plaintiff claims that in December 2004, Defendants terminated his employment in the apprenticeship program with the Union and his Union membership in violation of the Act. Complaint ¶ 2.

Plaintiff's motion is based upon Boreanaz's disclosure of three documents to Pfaff, at Pfaff's request, during Logan's deposition conducted on October 19, 2006. The disclosed documents included (1) the minutes of the November 19, 2004 J.A.T.C. meeting ("November 19, 2004 Meeting Minutes"), (2) the minutes of the March 11, 2005 J.A.T.C. meeting ("March 11, 2005 Meeting Minutes"), and (3) a "Timeline involving Kevin Scanlon"("the timeline"),*fn4 prepared by Benk, attached to the November 19, 2004 Meeting Minutes ("the documents"). Plaintiff claims the documents contain discoverable information regarding Plaintiff's termination. Plaintiff asserts that during the Logan Deposition, while representing Defendants and in response to Pfaff's request during the Logan deposition, Boreanaz voluntarily tendered the documents to Pfaff, thereby waiving any applicable attorney-client privilege and work-product protection in the documents. Plaintiff's Motion ¶6. Defendants assert both privilege and work-product protection in the documents and contend no waiver occurred as a result of Boreanaz's actions at the deposition with regard to the documents. Defendants' Memorandum at 5-8.

Present at the Logan deposition were Plaintiff, Pfaff, Logan and Boreanaz. At one point during the deposition, Pfaff asked Logan, "[b]efore you came here today, Sir, did you review any documents?" Dep. Tr. at 29. Logan responded, "yes" to this question. Id. at 29. In response to Pfaff's further questioning as to what documents Logan reviewed, Logan stated that he had reviewed, "[t]he minutes of the J.A.T.C. meetings." Id. at 30. Pfaff then inquired if Logan had the documents in his possession at the deposition and Logan stated that he did. Id. at 30. In response, Pfaff asked to view the documents, and Boreanaz requested Pfaff to sit on Logan's side of the table to facilitate the review. Id. at 30. Pfaff, in accordance with Boreanaz's suggestion then changed seats at the table, and commenced examining the November 19, 2004 Meeting Minutes. Id. at 30. Upon completing his review, Pfaff noted the attached Timeline and asked if the Timline was "all about" the Plaintiff. Id. at 30. Logan answered in the affirmative and Pfaff asked whether it "was something that was prepared by Mr. [Benk]...?", to which Logan responded "[t]hat's correct." Id. at 30-3.

At that point, Boreanaz objected to disclosure of the documents asserting attorney-client privilege and work-product protection, and requested a conference with Logan outside the deposition room. Dep. Tr. at 31. Without objection by Plaintiff, Boreanaz and Logan exited the deposition room, conversed, reentered the room, and resumed the deposition. Id. Boreanaz informed Pfaff that "[t]here is in Mr. Logan's possession something that is called a time line involving Kevin Scanlon. I believe that the time line may have been prepared at either the direction of or at the request of or under the supervision of Gene Salisbury [counsel to the J.A.T.C.], who was at the meeting or the meetings with the J.A.T.C. . . . I cannot ascertain if they were prepared under, you know, specific and strict guidelines such that they would qualify as an attorney/client privileged document right now . . . I must, however, assert privilege to the documents now subject to conferring with Mr. Salisbury." Id. at 31-32 (bracketed text added).

Thereupon, Pfaff ceased further examination of the November 19, 2004 Meeting Minutes and the Timeline, and instead requested copies of such documents. Dep. Tr. at 32. Pfaff also asked Logan to check ...

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