Since first opening their lawsuit against Black Diamond City Councilmembers Erika Morgan, Brian Weber and Pat Pepper on December 1, 2016, CCD Black Diamond Partners LLC have been working through the court system on the lawsuit until recently, when they subpoenaed Brian Derdowski and Kristen Bryant, requiring them to produce their documents regarding their involvement with Councilmembers
The original lawsuit outlined more than 135 violations of the Open Public Meetings Act (OPMA) of 1971 (RCW Chapter 42.30). Documents were served to each of the three Councilmembers while Brian Ross, CEO, Oakpointe Communities, read points from his letter to the Black Diamond Community during the second Public Comment Period of the December 1st City Council Meeting. In those documents as part of the Prayer for Relief, it calls for Morgan, Weber and Pepper to “each pay a penalty in the amount of five hundred dollars for each of the more than 135 violations of the OPMA identified above or as later determined in this litigation as required by RCW 42.30.120(1)-(3) totaling more than $67,500 for each Defendant Council Member.
Then, according to court documents, on June 30, 2017, Bryant was subpoenaed to have specific records produced and turned in by August 7th with a deposition appearance called for on August 17th. A one page “Objection” by Bryant was filed on July 14th, which included that witness and mileage fees be required. While there was objection to Bryant’s assertion to pay her as a witness as usually those fees are reserved for jurors, CCD BD went ahead and paid Bryant $13.78, which includes a $10 fee for the day of the deposition appearance as well as 53.5 cents per mile of which Bryant lives only 3.5 miles from the deposition location.
Documents requested by Bryant included all communications via emails/text, letters Bryant helped draft, proposed legislation she drafted/helped draft, agendas she drafted or assisted with drafting, notes she took during Council/committee meetings, notes of interactions or communications with the three Councilmembers as well as Derdowski, invoices she paid on behalf of or benefited any of the three Councilmembers, and receipts of funds/monies paid by Bryant on behalf of the three Councilmembers.
According to the court records, Bryant began claiming “attorney-client privilege” even though no privilege log had been produced; “undue burden,” which came with no explanation as to why it would be impossible for such a burden, especially when she was offered to be reimbursed for copy costs as well as received suggestions to keep costs down by using DropBox, email, disk, or simply bringing the documents to CCD BD to be copied and returned. Attorney Katherine George submitted a declaration to the court declaring that she had an attorney-client relationship with Pepper, Morgan, Derdowski and Bryant since February 2016.
Meanwhile, with attempts to contact Derdowski ending up in the negative file, Attorney Jeff Taraday was asked by Judge Helson to “assist in Mr. Derdowski’s acceptance of service of the subpoena…” for the August 16th deposition. Derdowski, whose subpoena is nearly identical to Bryant’s, was finally served his subpoena and is not, as of the date of this article, contesting his obligation to appear for his oral testimony on August 16th.
According to the court papers, CCD BD also wanted Weber to file a declaration as to the date he was laid off from Boeing, the amount of advance notice he was afforded prior to lay off, and anticipated rehire date – if any. There was also a prior request for Weber’s Boeing emails regarding any City Council member-related topics.
In the latest breaking court documents on August 3rd, Judge Janet Helson found that Pepper and Morgan along with Taraday had known since “…at least the July 14, 2017, Discovery Conference in this matter that the instant Motion of Privilege Determination would be filed.” She went on to state that it did not appear that Councilmembers had supplemented their privilege log with additional information for their claims since June 2nd.
Judge Helson continued to point out that Attorney George did not “…adequately establish that the documents are privileged.” On the issue of Taraday wanting more time for the matter as he was out of town from July 24-26th, she wrote, “…defendants should have been able to produce the explanation and any documentation given the notice they were given of the motion on July 14, 2017 and the fact the privilege logs were prepared fifty-five days prior to the response.”
“The Court DOES NOT FIND that the privilege motion was to be limited to communications with Brian Derdowski, Kristin Bryant and Kathy George. It was clear during the July 14 discovery conference that the issue was the entirety of the privilege logs and all documents being withheld on the basis of privilege by all three Defendants [Morgan, Pepper, Weber]. The July 20th Order – approved by Defendants’ attorney on July 19th as accurately reflecting the Court’s oral ruling – stated: ‘Plaintiff shall file a Motion with the Court challenging documents withheld as privileged by Defendants Morgan, Pepper and Weber.’”
Due to the Court needing to review copies of the records – except for emails between Taraday or staff and the Councilmembers, it was ordered that the Councilmembers would file with the Court by Monday, August 7 for an in camera to review copies of all records identified in their privilege logs produced with the supplemental discovery responses dated June 2, 2017. Judge Helson then laid out detailed information as to what she wanted to see and how it was to be presented. She also allowed that additional information regarding the nature and extent of any attorney-client be filed no later than Monday, August 7, 2017 with working copies provided to the Court.
