There has been a flurry of filings in Berry’s federal discrimination lawsuit against the town of Front Royal, though no trial date has been set since the case was prosecuted twice.
Lawyers for the town of Front Royal missed the April 14, 2022, 5:00 p.m. deadline to file objections to Judge Joel C. Hoppe’s March 31 memorandum and opinion, which partially ruled in Berry’s (called “Brown” in court papers due to his marriage after the lawsuit was initially filed) favored the city‘s solicitor-client privilege regarding communication with his attorney of record, Julie Judkins.
Judge Hoppe cited Matt Tederick’s Oct. 7, 2021, deposition, in which the former acting city manager said Ms. Judkins’ role was to “advise City Council with respect to a complaint filed [Brown]and further testified that the City retained the services of a specialist employment firm because it “wanted an outside eye, an expert on personnel matters to offer legal advice and advice in the event of need”.
Judge Hoppe wrote in his factum and opinion that any advice given by Ms. Judkin regarding Berry is protected by solicitor-client privilege. However, he ruled that communications with Judkins regarding the investigation of Brown’s harassment complaints, his investigation findings, and his advice on corrective action taken in response to the alleged harassment were not covered by solicitor-client privilege. of the lawyer. Hoppe, in the March 31 notice, ordered the City to disclose these communications.
Front Royal city attorney Heather K. Bardot filed objections at 9:54 p.m., nearly five hours after the deadline. The filing said the deadline was skipped when the order was received because “the court did not mention that it would shorten the time to file objections at the status conference on April 6, 2022, and the defense attorney did not envision that happening, or catching up on that time.
According to Judge Hoppe, responses to the objections would be due April 21, 2022, and a hearing on those objections was scheduled for April 25. However, shortly before the scheduled hearing, the lawyer was informed that the court had a conflict with the hearing date.
Although two alternative dates were proposed, the two parties had conflicts. At that time, the court indicated that the case would be decided on the basis of the pleadings, which then consisted of the objections and the response to the objections.
On Friday, April 22, 2022, after being advised of the above, a verbal order was issued granting the City’s motion for an extension to file a reply. Judge Thomas T. Cullen set a filing deadline of 5:00 p.m. on Thursday, April 28.
Heather K. Bardot, counsel for the City, on April 25, submitted a factum in support of a motion for extension of time, writing,
“Counsel for the defendant spent the weekend of April 23-24, 2022 preparing for a trial on April 26, 2022, after completing a four-day trial, April 18-21, 2022. The lawyer then spent April 25, 2022 preparing witnesses for trial, and will be on trial on April 26, 2022.
Although no one else had worked on the case, the defense attorney had hoped she could get help from another attorney in his office. However, one of the two lawyers she would usually turn to for help fell ill with COVID on Friday, and the other left on Friday to return home to be with her mother who is in hospice.
Timothy Cupp, attorney for Jennifer Berry Brown, filed an objection to Bardot’s motion to extend the deadline on Wednesday, April 27, stating, “‘The failure here of the city’s attorney to’ meet the deadline ” is simply insufficient to justify an untimely filing. He asked the judge in that filing to deny the city’s motion for an extension.
On Thursday, April 28, City Attorney Heather K. Bardot filed a response to plaintiff’s objection to defendant’s objections to the notice and order of the magistrate judge in the case, writing that the city “does not believe that the court has the power to shorten the time” provided by rule 72(a), which states in part that “a party may serve and file objections to the order within 14 days of the service of a copy A party may not attribute as an error a defect in the order which has not been disputed in time.
The district judge assigned to the case must review objections in a timely manner and vary or set aside any part of the order that is manifestly wrong or contrary to law. »
Bardot further wrote in the memorandum, “If the court were to find that it has the power under rule 72(a) to make an order shortening the time for filing objections to the order and magistrate’s opinion, the city is asking the court to exercise its discretion and grant its motion for an extension of time and consider the objections the city has made to the judge’s opinion and memorandum order magistrate. “
Bardot argues that the delay was “only a few hours … does not affect the proceedings, and the City sincerely and in good faith believed, based on a status conference with the court on April 6 2022, that objections should be filed at the normal time provided for in Rule 72(a), i.e. midnight.
The city argues that the communications that Hoppe ordered the city to provide to Berry Brown are, in fact, protected by solicitor-client privilege, and requested that “this court rescind the notice and order of the judge magistrate dated March 31, 2022, insofar as he argues that the city waived attorney-client privilege with Julia Judkins, Esquire, thereby requiring the city to disclose its communications with Ms. Judkins in relation to the investigation of the city on Jennifer Berry Brown’s sexual harassment complaint.
In a related case, the city filed a motion on April 27 to remove Judkins as a city attorney from Front Royal, Virginia, citing her retirement on December 31, 2021 from the firm of Bancroft, McGavin, Horvath & Judkins, PC Le judge did not rule on the matter.
As of Friday, April 29, the court has not ruled on any of the City’s filings.
Ms Berry Brown filed a civil complaint in Federal Court on January 4, 2021, alleging sexual harassment by former Front Royal elected officials and wrongful dismissal from her job as council clerk in retaliation.
A civil jury trial was scheduled to be held from May 31 to June 3 in the U.S. District Court for the Western District of Virginia in Harrisonburg before a series of filings in March forced U.S. Judge Thomas T. Cullen to continue the trial . It was originally scheduled to start on February 22, 2022, before continuing until May 31.
Berry Brown is represented by Harrisonburg attorneys Timothy E. Cupp and Tim Schulte. Fairfax attorneys Heather K. Bardot and Julia B. Judkins represent the town of Front Royal; Andrew S. Willis and John B. Mumford Sr., of Glen Allen, represent the Virginia Risk Sharing Association (VRSA), named the second respondent to the complaint.