QUICK v. TOWNSHIP OF BERNARDS

DISTRICT OF NEW JERSEY

CHRISTOPHER AND LORETTA Civ. No. 17-5595 (GC)(JBD)

QUICK,

Plaintiffs, MEMORANDUM ORDER

v.

TOWNSHIP OF BERNARDS, et al.,

Defendants.

In this long-running case that has been repeatedly beset by trivial discovery

disputes, plaintiffs Christopher and Loretta Quick challenge on First Amendment

grounds a provision in a settlement agreement that resolved a prior federal civil

action regarding the proposed construction of a mosque in Bernards Township,

New Jersey (hereafter, the “Township”). The Court here resolves Plaintiffs’ motion

[Dkt. 100] to reopen the depositions of three Township officials on the ground that

their counsel improperly invoked the attorney-client privilege during their

depositions, which Plaintiffs say prevented their inquiry into the provenance of the

challenged provision. In the same motion, Plaintiffs also ask the Court to compel

the production of documents that the Township says it does not possess or control.

The Court finds it regrettable but necessary to delay this action further.

With the benefit of briefing and oral argument, the Court will grant Plaintiffs’

motion in part and deny it in part. More specifically, the Court will permit the

limited reopening of the depositions of the three Township officials, as specified

requested documents, but with directions to the Township.

I. BACKGROUND

This case arises out of a lawsuit by the Islamic Society of Basking Ridge

(“ISBR”) challenging the denial of an application to build a mosque in Bernards

Township. [Dkt. 17 (“Am. Compl.”)] ¶¶ 21–25. That lawsuit concluded with a

settlement agreement, which this Court enforced through an order. Id. ¶¶ 26–27.

The mosque was built thereafter.

Plaintiffs filed the current lawsuit challenging the terms of the settlement

agreement, which barred them from making any commentary regarding Islam or

Muslim at the public hearing to approve the site plan for the mosque. Id. ¶ 11.

Under the settlement agreement, ISBR was to submit a site plan for construction of

the mosque. Id. ¶ 28. The settlement agreement also required the Township’s

Planning Board to hold a public hearing to approve the site plan and required ISBR

to provide notice of the meeting to any owner of real property within 200 feet of the

proposed mosque site. Id. ¶¶ 30, 34. Plaintiffs, who reside within 200 feet of the

site, alleged that the settlement agreement’s provision prohibiting any commentary

regarding Islam or Muslims at a public hearing violated their rights under the First

and Fourteenth Amendments to the United States Constitution. Id. ¶ 1. Plaintiffs

alleged that they wanted to comment on the impact of the proposed mosque on their

home and neighborhood but were unable to do so because of the restriction in the

settlement agreement. Id. ¶¶ 50–51.

and the Township’s motion to dismiss [Dkt. 29], the Township answered the

complaint in May 2018 and discovery ensued. Since then, the parties have been

mired in a series of discovery disputes.

In the current dispute, Plaintiffs contend that the Township hindered their

inquiry into the settlement process by lodging improper attorney-client privilege

objections and instructing their witnesses not to answer. Plaintiffs argue that

despite this Court’s prior order directing them not to do so, the Township interposed

blanket objections on the asserted basis that all communications during the

executive sessions were protected by the attorney-client privilege. For example,

during the deposition of Kathleen Piedici (chairwoman of the Planning Board), the

following exchange took place:

Q: Did the planning board discuss the settlement

agreement among themselves without the attorneys

present?

Mr. Ketterer: Again, given closed session[,] attorney/client

privilege. You can rephrase the question.

Mr. Thompson: I’m not going to rephrase it. You know,

you’re going to use that attorney-client privilege, but this

is a factual question. It is not asking about any advice that

the attorneys gave or any questions that they asked the

attorney. It’s what they discussed among themselves

without the attorneys present.

Mr. Ketterer: You’re asking about a confidential executive

session which is covered by the attorney/client privilege,

okay? This only – executive session occurs with the

attorney present in order to deal with this.

[Dkt. 100-4 (“Piedici Dep.”)] 50:5–22. Plaintiffs argue that this exchange—among

many other similar exchanges during the depositions of Piedici, Carol Bianchi

that the Township improperly invoked the attorney-client privilege with respect to

all communications made during the executive sessions. [Dkt. 100-1 (“Pl. Br.”)] at

8–9.

Relying on Hinsdale v. City of Liberal, Kansas, 961 F. Supp. 1490, 1494 (D.

Kan. 1997), Plaintiffs argue that communications during the executive sessions are

privileged only if they “related to the acquisition or rendition of professional legal

services.” Plaintiffs contend that the Township has failed to meet its burden of

establishing that the communications it seeks to protect are covered by the

attorney-client privilege. Accordingly, Plaintiffs ask the Court to continue the

depositions of Bianchi, Piedici, and Carpenter. Plaintiffs also ask the Court to order

the Township to produce draft agreements, term sheets, and proposals mentioned in

executive session meeting minutes.

The Township opposes the motion and stands by its privileged-based

objections. The Township argues categorically that communications during the

executive sessions were made for the purpose of obtaining legal advice from counsel,

and therefore are protected by the attorney-client privilege. [Dkt. 102 (“Def. Ltr.

Br.”)] at 4. With respect to the documents Plaintiffs seek, the Township asserts

that it does not have them within its possession, custody, or control and, therefore,

cannot produce them. Id. at 7–8.

Federal Rule of Civil Procedure 26(b)(1) gives parties the right to 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). While

the scope of discovery is broad, it is not unlimited and may be circumscribed. Bayer

AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999). For instance, as Rule 26

makes explicit, “a party may seek to avoid production of otherwise relevant

information on the basis that the production is protected by a privilege.” Castellani

v. City of Atl. City, Civ. No. 13-5848 (JBS), 2016 WL 7131578, at *2 (D.N.J. June 30,

2016) (citing Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000)). If a party believes

that the opposing party failed to answer a relevant and nonprivileged question

asked during a deposition, or failed to produce relevant and nonprivileged

documents, the party may move the Court to compel discovery. See Fed. R. Civ. P.

37(a)(3)(B)(i) & (iv). Decisions on motions to compel, like this one, “fall within the

sound discretion of the Court.” United States v. Morales, Civ. No. 17-7447 (BRM),

2019 WL 13251180, at *5 (D.N.J. July 31, 2019) (citing Drippe v. Tobelinski,

604 F.3d 778, 783 (3d Cir. 2010)).

Privileges asserted in federal court are governed by Federal Rule of Evidence

501, which provides that “[t]he common law—as interpreted by United States courts

in the light of reason and experience—governs a claim of privilege unless any of the

following provides otherwise: the United States Constitution; a federal statute; or

rules prescribed by the Supreme Court.” Fed. R. Evid. 501; Pearson v. Miller,

211 F.3d 57, 65–66 (3d Cir. 2000) (“[F]ederal courts are to apply federal law of

rule of decision.’”).

As the party asserting it, the Township bears the burden of demonstrating

that the attorney-client privilege applies to the communications it seeks to protect.

In re Grand Jury Investigation, 918 F.2d 374, 385 n. 15 (3d Cir. 1990). The

elements of the attorney-client privilege are familiar: “[W]hen: (1) legal advice of

any kind is sought (2) from a professional legal advisor in his capacity as such,

(3) the communications relat[e] to that purpose, (4) made in confidence, (5) by the

client, (6) are at his insistence permanently protected (7) from disclosure by himself

or by the legal advisor, (8) except the protection [may] be waived.” In re

Impounded, 241 F.3d 308, 316 n.6 (3d Cir. 2001) (citation omitted). “In determining

whether the privilege applies in a given case, the ultimate question is whether a

communication is one made for the purpose of obtaining legal advice or services.”

Immunex Corp. v. Sandoz Inc., Civ. No. 16-1118 (CCC), 2017 WL 2466507, at *2

(D.N.J. June 7, 2017) (citing In re Spalding Sports Worldwide, Inc., 203 F.3d 800,

805 (Fed. Cir. 2000)).

Whether the attorney-client privilege applies is determined on a case-by-case

basis. Id. (citations omitted). “[A] blanket claim of privilege that does not specify

what information is protected will not suffice.” Wilstein v. San Tropai Condo.

Master Ass’n, 189 F.R.D. 371, 378 (N.D. Ill. 1999) (quoting United States v. White,

970 F.2d 328, 334 (7th Cir. 1992)).

Plaintiffs seek an order compelling (i) the continuation of the depositions of

Bianchi, Piedici, and Carpenter; and (ii) the production of term sheets and draft

settlement agreements from the Township’s litigation against ISBR. The Court

addresses each request in turn.

A. Request to Continue Depositions

Plaintiffs argue that the Township improperly foreclosed deposition

testimony concerning discussions held during the executive sessions by objecting to

every question on the subject and directing the deponents not to answer. [Dkt. 103

(“Pl. Reply”)] at 7. As the party asserting the privilege objection, the Township

bears the burden of establishing that Plaintiffs seek information protected by the

attorney-client privilege. In re Grand Jury Investigation, 918 F.2d at 385 n.15.

On the record before it, the Court concludes that the Township has failed—

demonstrably—to meet its burden.

The Township’s only attempts to justify its privilege invocations are

conclusory statements—without citation to any authority—that negotiations

regarding a settlement agreement or communications during the executive sessions

are protected by the attorney-client privilege. See Def. Ltr. Br. at 4. During oral

argument, the Township asserted—again, without any basis or authority—that the

purpose of the joint executive sessions with the Planning Board and the Township

Committee was for members to speak to their attorney, and therefore, any

conversations that took place during those executive sessions must be protected by

the attorney-client privilege. Rather than establishing how specific communications

Corp., 2017 WL 2466507, at *2, the Township merely states that “the content of

[Plaintiffs’] questions . . . are clearly seeking to understand the ‘mechanics’ of how

settlement negotiations occurred, which would necessarily reveal communications

between client and counsel.” [Dkt. 102-1 (“Ketterer Aff.”)] ¶ 3.

Courts have made clear that the “attorney-client privilege does not provide

blanket protection from discovery. Only the relevant portions of the executive

session meeting discussing confidential information disclosed to the attorney or

advice from the attorney relating to pending or anticipated litigation are privileged

from discovery.” Wilstein, 189 F.R.D. at 380 (finding that the attorney-client

privilege did not shield from discovery all communications by board members

during a condominium board executive session to discuss their attorney’s letter

regarding pending litigation); Larson v. Harrington, 11 F. Supp. 2d 1198, 1201 (E.D.

Cal. 1998) (“[T]he fact that confidential communications within the privilege may

have been made at the board meetings does not cloak the entire proceeding in

secrecy.”). Moreover, “mere attendance of an attorney at a meeting does not render

everything done or said at that meeting privileged.” Hinsdale, 961 F. Supp. at

1494; Wilstein, 189 F.R.D. at 379. The privilege also does not extend to bare facts

underlying a communication from attorney to client, so long as the client has also

learned those facts independently of attorney-client privileged communications.

Antolini v. McCloskey, et al., Civ. No. 19-9038 (GBD), 2021 WL 5411176, at *10

(S.D.N.Y. Nov. 19, 2021).

among the Planning Board or Township Committee members themselves or the

opinions, impressions, and conclusions of the Planning Board or Township

Committee members based upon events that occurred during the executive sessions.

See Hinsdale, 961 F. Supp. at 1494. Nor would they necessarily render privileged

the members’ communications with their attorney; for example, if some of their

communications concerned non-legal, commercial, business, or other practical

considerations relating to the mosque’s construction. See Wachtel v. Health Net,

Inc., 482 F.3d 225, 231 (3d Cir. 2007) (“[B]ecause the purpose of the privilege is to

promote the dissemination of sound legal advice, the privilege will extend only to

advice which is legal in nature. Where a lawyer provides non-legal business advice,

the communication is not privileged.”).

The Court, accordingly, finds nothing objectionable—in the abstract—with

Plaintiffs’ counsel’s questions on the following topics: (i) discussions among the

Planning Board or Township Committee members about the settlement agreement,

if they were not seeking legal advice (Piedici Dep. 49:6–8 (“Q: Was there any

discussion about what the attorneys presented to you as a settlement agreement?”);

[Dkt. 100-5 (“Bianchi Dep.”)] 64:19–20 (“Q: Was there questions about the

settlement agreement that you saw?”)); (ii) personal opinions, impressions, and

conclusions of the Planning Board or Township Committee members ([Dkt. 100-6

(“Carpenter Dep.”)] 50:18–25 (“Q: [D]o you think it’s appropriate that individuals

who are going to comment at a public hearing regarding zoning application for the

building of a mosque should be placed under the restriction, quote, No commentary

of settlement negotiations between the Township and ISBR (Bianchi Dep. 60:8–10

(“Q: I’m on the outside looking in. Just describe for me the process that was used to

arrive at a settlement.”), 23–25 (“Q: Did Mr. Chaudry, or any of the ISBR attorneys,

appear before the township committee during the negotiation process?”); Carpenter

Dep. 39:25–40:1 (“Q: Would you describe for me the - - the mechanics of negotiating

with ISBR and Mr. Chaudry?”)). The Court also sees nothing at all improper with

questions intended in part to confirm the absence of the attorney-client privilege.

See, e.g., Piedici Dep. 50:5–7 (“Q: Did the planning board discuss the settlement

agreement among themselves without the attorneys present?”).

It may well be that some of the questions from the members of the Township

Committee and Planning Board were “made for the purpose of seeking advice or a

legal opinion.” Def. Ltr. Br. at 4–5. And so it may well be that some of the

discussions during the executive sessions are protected by the attorney-client

privilege. Conversely, it may well be that some of the discussions during the

executive sessions are not protected by the privilege. But given the Township’s

blanket objection to all questions on the topic and its directions to the deponents not

to answer, we do not know: The Township has failed to establish a factual record

enabling this Court to decide the privilege questions. This failure is particularly

problematic in light of this Court’s prior order:

[T]here shall be no wholesale objection that would prevent

the depositions from taking place or prevent the witnesses

from answering questions that are not the subject of

specific privilege objections. It also means that if instructed

not to answer a question based on privilege, the witness

should nonetheless be prepared to answer properly posed

i.e., with regard to who was present at the time of the

communication or the general subject matter of what was

discussed. The parties are cautioned that anyone asserting

an attorney-client privilege or attorney work product

objection must be prepared to substantiate that objection.

[Dkt. 55] at 12. Upon review of the relevant deposition transcripts, the Court

agrees with Plaintiffs that the Township did exactly what this Court instructed it

not to do: It lodged wholesale objections to revealing any communications that took

place during the executive sessions, then failed to demonstrate the factual

predicates of its invocation of the attorney-client privilege. Counsel is cautioned

that future failures to comply with the Court’s directives on this score may warrant

sanctions. See, e.g., Specht v. Google, Inc., 268 F.R.D. 596, 599–603 (N.D. Ill. 2010)

(imposing sanctions on counsel for, among other things, improperly asserting the

attorney-client privilege during depositions, and instructing the witness not to

answer based on “an untenable and overly broad definition of attorney-client

privilege”).

Switching gears somewhat, the Court equally is unpersuaded by the

Township’s position that Plaintiffs improperly sought legal conclusions from its fact

witnesses. Under Rule 30(c)(2), “[a] person may instruct a deponent not to answer

only when necessary to preserve a privilege, to enforce a limitation ordered by the

court, or to present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2).

Accordingly, even if Plaintiffs’ questions called for a legal conclusion, it was

improper for the Township’s counsel to instruct his clients not to answer.

See Catherine Heagy, et al. v. Burlington Stores, Inc. et al., Civ. No. 20-2447, 2021

WL 5399910, at *7 (E.D. Pa. Nov. 17, 2021) (declining to adopt a more expansive

counsel improperly instructed a fact witness not to answer a question on the basis

that it required a legal conclusion).

Furthermore, upon the Court’s review of the deposition transcripts, most of

Plaintiffs’ questions that prompted objections from the Township because they

purportedly called for a legal conclusion did not, in fact, do so. Instead, they sought

the opinion and impressions of the Township officials on the settlement agreement

provision at issue, but did not seek to draw a conclusion on the ultimate First

Amendment question. See, e.g., Carpenter Dep. 50:18–25 (“Q: “As a member of the

- - as a former member of the planning board and an official of the township

committee, do you think it’s appropriate that individuals who are going to comment

at a public hearing regarding zoning application for the building of a mosque should

be placed under the restriction, quote, No commentary regarding Islam or Muslims

will be permitted?”). Moreover, “[t]he fact that the lay opinion testimony bears on

the ultimate issue in the case does not render the testimony inadmissible.”

Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997). And in any

event, the ultimate admissibility or inadmissibility of deposition testimony is not

before the Court at this time; the question is whether Plaintiffs may obtain answers

to their questions. The Township’s argument that Plaintiffs improperly sought

legal conclusions from the Township officials is, accordingly, unpersuasive. Even if

Plaintiffs’ questions called for a legal conclusion, counsel for the Township should

not have instructed the witnesses not to answer on that basis.

depositions of Bianchi, Piedici, and Carpenter for the limited purpose of examining

them about the settlement negotiations. Each deposition will be conducted at a

time and place mutually convenient for all participants, but all depositions shall

take place no later than August 18, 2023. Moreover, each deposition shall be

limited to 60 minutes of on-the-record testimony. On the Court’s review of the

original deposition transcripts, that amount of additional time is more than

enough.1

The Court emphasizes that some (perhaps many) of the communications at

issue may be subject to a valid invocation of the attorney-client privilege. If the

Township is to invoke the attorney-client privilege, however, it must do so properly,

on a question-by-question, communication-by-communication basis, with a factual

foundation for each objection, and with a record sufficient to enable the Court to

decide whether the invocation is proper. If necessary, counsel for the Township

should take a break to speak to his clients to understand the factual foundation for

any privilege objection, and to confirm that the communication is in fact protected

by the privilege. For each objection that he asserts based on the attorney-client

privilege, counsel for the Township also is directed to prepare a privilege log

1 Lest it be unsaid, this Court will not view favorably any obstreperous or bad-

faith efforts by the deponents or counsel to run out the clock on the Court’s time

limitation.

communication, and the general subject matter of the discussion.2

B. Request to Compel Production of Draft Settlement Documents

Plaintiffs also ask the Court to compel the Township to produce any term

sheets or draft settlement agreements discussed in the executive session minutes.

Here, as the party seeking to compel the documents, Plaintiffs bear the burden of

establishing that the Township is in possession, custody, or control of the

documents, i.e., “[it] has the legal right or ability to obtain the documents from

another source upon demand.” Microsoft Corp. v. Softicle.com, Civ. No. 16-02762

(MCA), 2017 WL 4387376, at *7 (D.N.J. Oct. 2, 2017). Plaintiffs argue that the

documents at issue are in the Township’s control because under New Jersey’s ethics

rules, a law firm is required to maintain a client’s records for seven years after the

case has closed. Pl. Reply at 11. Because the Township has the legal right to the

documents as part of the case file, Plaintiffs say the Township should be able to

obtain them and produce them here.

2 Counsel complains that he cannot prepare a log of privileged discussions at

the executive sessions because he was not present at the meetings and his clients do

not have access to any record of the attorney-client conversations. Ketterer Aff. ¶ 7.

This excuse is unfounded and unacceptable. As noted above, it is the Township that

has the burden of establishing that a particular communication was legal advice or

for the purpose of seeking legal advice, and was intended to be and was kept

confidential. See Hinsdale, 961 F. Supp at 1494. At the very least, counsel should

discuss with his clients the conversations that took place during the executive

sessions and identify which, if any, portions of those discussions, were for the

purpose of obtaining legal advice. In all events, counsel must be prepared to justify

his privilege assertions with facts.

of things that do not exist. Nor can the Court compel the creation of evidence by the

parties who attest that they do not possess the materials sought by an adversary in

litigation.” Oke v. Garman, Civ. No. 18-310, 2019 WL 6328022, at *4 (M.D. Pa.

Nov. 26, 2019) (citation omitted). The Township has represented directly to this

Court that it cannot produce the documents that Plaintiffs want because it does not

have them. Def. Ltr. Br. at 7. The Township submitted a certification from its

former Municipal Clerk stating that she “conducted a diligent search” of the

Township’s files to identify copies of any draft settlement agreements or settlement

terms sheets in its custody or control, but was unable to locate such documents.

[Dkt 102-2 (“Pisano Aff.”)] ¶ 4. Counsel for the Township also submitted a

certification stating that following a “good faith search,” he and his client confirmed

that the Township does not maintain copies of any term sheets or draft settlement

agreements. Ketterer Aff. ¶ 6. Moreover, Plaintiffs have not identified any

evidence that the Township in fact possesses or has access to the documents.

Harris v. Koenig, 271 F.R.D. 356, 371 (D.D.C. 2010) (“Lack of evidence showing that

a producing party is in fact in possession of a document is grounds to deny a motion

to compel.”) (citation omitted).

On the present record, the Court denies Plaintiffs’ motion to compel the

production of the term sheets and draft settlement documents. The Court will,

however, direct the Township to engage further in a good faith attempt to seek

those documents from the Township’s former counsel who were involved in the

settlement negotiations or meetings related to settlement, and to produce them to

follow-up search, the Township should so certify to Plaintiffs.

IV. CONCLUSION

This case was filed nearly six years ago; it should have been long since

resolved. Instead, it remains mired in discovery. With no view on the ultimate

merits of Plaintiffs’ claims, the Court expresses its fervent desire for the parties and

their counsel to work together in good faith to position this matter—finally—for a

resolution. Cf. Fed. R. Civ. P. 1.

For the reasons stated, and for good cause shown,

IT IS on this 28th day of June, 2023,

ORDERED that Plaintiffs’ motion to continue the depositions of Bianchi,

Piedici, and Carpenter [Dkt. 100] is GRANTED; and it is further

ORDERED that the parties are directed to meet and confer regarding

scheduling the depositions and to complete the depositions by no later than

August 18, 2023; and it is further

ORDERED that upon scheduling the depositions, the parties promptly shall

email chambers at jbd orders@njd.uscourts.gov and identify the dates on which the

depositions will be conducted; and it is further

ORDERED that each deposition shall last no longer than 60 minutes of

on-the-record testimony; and it is further

ORDERED that if counsel for the Township lodges any objections based on

attorney-client privilege, counsel shall prepare a privilege log documenting the

approximate date of the communication, individuals involved in the communication,

and the general subject matter of the discussion for each communication at issue;

and it is further

ORDERED that Plaintiffs’ motion to compel production of draft settlement

agreements and term sheets [Dkt. 100] is DENIED; and it is further

ORDERED that counsel for the Township is directed engage in a good-faith

attempt to seek the documents that Plaintiffs request from the Township’s former

counsel and to produce them to Plaintiffs if they are available, or certify to Plaintiffs

if they are unavailable; and it is further

ORDERED that the Court will conduct a telephone status conference with

counsel on September 7, 2023 at 10:00 a.m.

J. BRENDAN DAy

UNITED STATES MAGISTRATE JUDGE

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