Treetop at Stratton Condo. Ass’n v. Treetop Dev. Co., No. 147-3-09 Wmcv (Wesley, J., Feb. 4, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                          STATE OF VERMONT
                                                           SUPERIOR COURT

TREETOP AT STRATTON CONDOMINIUM                                     │
ASSN.,Inc.
 Plaintiff                                                          │
                                                                                WINDHAM UNIT, CIVIL DIVISION
 v.                                     │                                       Docket No. 147-3-09 Wmcv
Treetop Development Co.,LLC; Intrawest
Stratton Development Corp.; DEW         │
Construction Corp.; and Bruno Assoc. Inc.
 Defendants                             │

Treetop Development Co.,LLC; Intrawest
Stratton Development Corp.             │
 Third Party Plaintiffs                │
                                       │
 v.                                    │
DEW Construction Corp.                 │
  Third Party Defendant
                                       │
DEW Construction Corp.
  Fourth Party Plaintiff
  v.
Cameron Bros. Inc. &
Cassella Construction, Inc.
    Fourth Party Defendants

                                ORDER RE: PENDING DISCOVERY MOTIONS

        Pending in this action claiming damages arising from alleged faulty construction of the
Treetop Condominiums on Stratton Mountain are multiple motions involving various discovery
issues still in dispute. This order will address Plaintiff’s Motion to Compel Deposition
Testimony of Peter Brabazon, Developer Defendants’ Motion to Compel Document Production
and Testimony from Plaintiff, Developer Defendants’ Motion to Compel Interrogatory Answer
(Attorney’s Fees) from Plaintiff, Defendants’ Joint Motion to Amend Discovery Schedule, and
Defendant DEW’s Motion to Enforce Compliance. In general, the Court finds that the parties
have continued the pattern of excessive litigation over discovery which had been deplored in the
Court’s Opinion & Order re Discovery issued on Nov. 12, 2010, apparently to little effect.

                            Motion to Compel Deposition Testimony of Peter Brabazon

       This motion, and the one discussed next, present mirror-image objections by the major
opposing parties, each of whom claim that Mr. Brabazon is engaged in a confidential relationship
that merits protection from discovery by other parties. Thus, the ways in which the arguments
ricochet against their proponents could be considered ironic – or perhaps the apotheosis of the
advocates’ art - depending on one’s point of view. In any event, the Court’s response ought to
have been predictable.

        Plaintiff Homeowners Association (“the Association”) is seeking an order to compel
certain testimony from witness Peter Brabazon over the objection of ISDC’s counsel at
Brabazon’s deposition. Brabazon was asked to disclose communications he had with ISDC
employees concerning the affairs of the Association after the lawsuit was commenced. Plaintiff
contends that this line of questioning would not solicit confidential communications as it sought
communications between ISDC employees and Brabazon made while Brabazon was in his
capacity as both a Stratton employee and a management agent of the Association. Any
communications were, therefore, made pursuant to Brabazon’s role as the Association’s property
manager under the Association’s Management Agreement, and would not be confidential or
privileged.

        Developer Defendants ISDC and TDC, and non-party Stratton Corp., filed an opposition
memorandum on November 16, 2010. Defendants argue that as an employee of Stratton Corp.,
the parent company of ISDC, Brabazon’s communications with ISDC employees were in fact
privileged since Stratton, ISDC, and TDC, communicated and developed attorney work product
in pursuit of joint legal interests arising from this lawsuit. Accordingly, since ISDC and Stratton
shared common legal interests, as well as common legal counsel, any on-going communications
between Brabazon and ISDC employees must be afforded protection under a joint legal interest
theory of the attorney-client privilege. Defendants allege that the line of questioning advanced
by Plaintiff could potentially reveal confidential attorney work product arising from legal
strategy pursued by Stratton and ISDC.

        In general, discovery must be complied with where the information sought may lead to
admissible evidence. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978). Parties
may obtain discovery “regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action.” V.R.C.P. 26(b)(1). The pronounced policy of the
caselaw favors disclosure. See Douglas v. Windham Superior Court, 157 Vt. 34, 45 (1991).

        Acknowledging the competing claims made by each party with respect to Brabazon’s role
as either employee or agent, the Court finds it unnecessary to delineate the exact scope of those
claims. Rather, Brabazon was sufficiently involved on behalf of multiple parties whose interests
eventually became conflicted so as to render implausible anyone’s claim for privilege. Thus, the
Court concludes that no privilege exists here with respect to communications between Brabazon
made in his capacity as an Association agent and ISDC employees. Though it is doubtful that
given his competing loyalties, either party can claim attorney-client privilege with respect to
discussions with Brabazon, the questions that were objected to by defense counsel did not solicit
communications with counsel or representatives of counsel. The even more nebulous claim that
such communications are protected as work-product is simply unsustainable. In light of these
unique circumstances, and the authorities favoring broad discovery, the Court will not permit
Defendants to withhold disclosure from Plaintiff at this stage of the litigation where the
applicability of the attorney-client privilege is tenuous at best. Plaintiff’s Motion to Compel is
GRANTED.




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    Developer Defendants’ Motion to Compel Document Production and Testimony from Plaintiff

        By their reciprocal Motion to Compel Documents and Testimony, Developer Defendants
ISDC, TDC, and TT3 request production by Plaintiff of all communications between Plaintiff’s
counsel and Brabazon previously objected to by Plaintiff on the basis of attorney-client privilege.
Developers further move the Court to order Plaintiff to cease instructing Brabazon to not answer
questions at deposition concerning communication between Brabazon and Plaintiff’s counsel.
Developers argue that Plaintiff’s counsel knew Brabazon was an employee of Stratton Corp., an
entity which is a known client of defense counsel. As such, Developers assert that Plaintiff could
not have reasonably concluded that its communications with Brabazon were in any way
privileged knowing that Brabazon was an employee of a potentially adverse entity represented
by the same law firm representing named Defendants in this suit.

        In its Opposition Memorandum filed on December 23, 2010, Plaintiff alleges that
Brabazon communicated with Plaintiff’s counsel for the very purpose of rendering legal services
on behalf of the Association, notwithstanding what Stratton’s contractual obligations were, and
thus, any communications must be afforded protection pursuant to V.R.E. 502(b).

         As with its prior ruling, the Court is not compelled to recognize a privilege within the
convoluted context of Brabazon’s competing loyalties. A representative of a client is any person
who while acting in the scope of employment for the client, makes or receives confidential
communication necessary to effectuate legal representation. V.R.E. 502(a)(2)(B). Yet, as
discussed above, Brabazon’s competing obligations to the multiple interests represented by this
litigation permit no neat fit with the template of the rule. Accordingly, having found that no
attorney-client privilege exists between Plaintiff’s counsel and Brabazon,1 the Court will order
Plaintiff to produce any documents it has withheld of communications between Brabazon and
Plaintiff’s counsel, and further hold that attempts to restrict Brabazon from answering questions
concerning communications he has had with Plaintiff’s counsel are without legal basis. The
motion to compel is GRANTED.

              Motion to Compel Interrogatory Answer (Attorney’s Fees) from Plaintiff

        On December 2, 2010, Defendants ISDC and TDC filed a Motion to Compel
Interrogatory Answers from Plaintiff stemming from Plaintiff’s counsel’s refusal to disclose
accumulated attorney’s fees. Defendants allege that, despite seeking attorney’s fees as a
component of damages alleged by Plaintiff in its initial complaint, and despite earlier disclosures
of to-date calculations of its attorney’s fees in response to previous interrogatories, Plaintiff now
refuses to answer interrogatories asking for these fees. Defendants maintain that the relief
requested plainly makes the discovery request pertinent, and further avers that they seek not to
scrutinize the calculations in order to challenge their reasonableness, but rather to evaluate the
full extent of their exposure to possible damages under Plaintiff’s claims. Defendants further
note that this information may facilitate a universal settlement, and is plainly within the scope of
relevant and non-privileged material otherwise discoverable under V.R.C.P. 26.

1
 Having ruled on this dispute on other grounds, the Court need not address Defendants’ alternate theory that
Plaintiff has waived any privilege through prior disclosures.


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        Plaintiff’s Opposition, filed on December 20, 2010, argues that Vermont courts have
historically considered recovery of attorney’s fees in post-trial proceedings, and that until such
time as Plaintiff prevails, its attorney’s fees are neither relevant nor reasonably likely to lead to
discovery of evidence. Plaintiff does not elucidate why the post-judgment nature of an
attorney’s fee award insulates evidence of the scope of a potential award from discovery, nor
present any authority to support such a claim. Defendants’ proffer that it seeks to know the
exposure represented by the claim for attorney’s fees suffices to dispel any concern as to
overbreadth or harassment, based on the Court’s assessment of the circumstances presented here.
The motion to compel is GRANTED.

                                          Amend Discovery Schedule

        Defendants filed a Joint Motion to Amend the Discovery Schedule on Nov. 29, 2010.
According to the motion, joined by all Defendants, the proposed schedule represents a fair
attempt by the parties to address their further need to investigate and present their cases, and
expeditiously move toward a conclusion. Plaintiff filed a response on Dec. 14, 2010 urging the
Court to deny the motion because it was not preceded by meaningful discussion to resolve the
issues addressed. Nevertheless, Plaintiff expressed optimism that the parties would eventually
arrive at an agreement on any provisions at issue without the assistance of the Court. The Court
has been advised of no further progress toward a stipulated extended scheduling order, despite
the requirements for good faith accommodation under V.R.C.P 16.3 and 26(h). Recognizing
that many of the proposed deadlines have expired while the motions addressed by this order have
been under advisement, and that this order resolves certain aspects of the case, the Court
GRANTS the motion to amend the discovery schedule, and directs the parties to diligently
attempt to present no later than Feb. 15, 2011 a stipulated revised schedule taking into
consideration this order as well as the state of discovery since the previous order issued Nov. 12,
2010, or in the alternative, separate proposals specifying the basis for any disagreement.2

                                        Motion to Enforce Compliance

        Defendant DEW filed a Motion to Enforce Compliance on December 1, 2010, in which it
claims that Plaintiff has failed to completely respond to interrogatories. Plaintiff filed a
memorandum in response on December 12, 2010 arguing that DEW’s motion failed to provide a
verbatim listing of the items of discovery sought, and did not specify the reasons why the items
should be allowed or disallowed, pursuant to V.R.C.P. 26(h). Plaintiff also demanded that the
Court award attorney’s fees and costs Plaintiff has incurred in attempting to respond to a motion
which Plaintiff asserts is clearly in violation of V.R.C.P. 26(h).

        DEW filed a reply on January 5, 2010 in which it exhaustively detailed each of the 16
interrogatories responses that are allegedly deficient, why they are deficient, and what types of
responses DEW believes would cure the defects. Shortly thereafter, Plaintiff filed a motion to

2
  On Dec. 29, 2010, Defendant Bruno filed a sur-reply to Plaintiff’s response to the joint motion raising issues as to
Plaintiff’s expert disclosures and the potential affect on a revised scheduling order. In light of its order granting
Defendant Bruno’s motion for summary judgment, the Court declines to address Bruno’s Dec. 29 objection, treating
it as having become moot.


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strike DEW’s reply memorandum because it raised issues for the first time in an improper
format, or in the alternative for leave from the Court to file a sur-reply in order to meaningfully
respond to the reply motion. DEW filed an opposition to the motion to strike on January 13,
2010, where it did not oppose Plaintiff’s request to file a sur-reply, but maintained that Plaintiff
was well aware of the matters at issue in this discovery dispute, since the same disputes have
been exhaustively briefed months ago. Plaintiff filed a sur-reply on January 28, 2011,
responding in detail to DEW’s reply memorandum.

         The Court declines to make any substantive analysis of DEW’s motion, concluding that
it was filed without having been properly framed as required by V.R.C.P. 26(h). Nevertheless,
the requests were neither entirely groundless, nor the violations of Rule 26(h) so pronounced, so
as to warrant Plaintiff’s request for attorneys fees. Rather, the Court strenuously urges the
parties to desist with respect to claims of inadequate responses to written discovery, which was
closed by the Court’s Nov. 12 order, excepting each party’s obligation to supplement in the event
new information requires disclosure to meet existing requests.

       WHEREFORE, it is hereby ORDERED:
        Plaintiff’s Motion to Compel Deposition Testimony of P. Brabazon is GRANTED.
        Developer Defendants’ Motion to Compel Document Production & Testimony is
        GRANTED.
        Developer Defendants’ Motion to Compel Interrogatory Answer (Attorney’s Fees) is
        GRANTED.
        Joint Defendants Motion to Amend Discovery Schedule is GRANTED, subject to
        requirement of presenting proposed extensions by Feb. 15, 2011
        DEW’s Motion to Enforce Compliance is DENIED.


       Dated at Newfane this 4th day of February, 2011.



                                               _____________________________
                                               John P. Wesley
                                               Superior Court Judge




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