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Nicholas Recchia v. Kellogg Company

March 6, 2012


The opinion of the court was delivered by: Williams , United States Magistrate Judge:

[Doc. No. 23]


THIS MATTER is before the Court on the Motion of Defendant, Kellogg Company, seeking to compel the deposition of Plaintiff Nicholas Recchia's attorney, Jacqueline Vigilante, Esquire. Plaintiff opposes this Motion. The Court has considered the submissions of the parties pursuant to Federal Rule of Civil Procedure 78, and for the reasons set forth herein, the Motion is DENIED.


In this employment action, Plaintiff alleges, inter alia , that he was terminated on account of his age and disability. ( See Compl., Doc. No. 1.) Plaintiff was employed with Defendant as a warehouse supervisor for about 28 years and alleges that in March 2009 he took an approved leave of absence after being diagnosed with alcoholism. ( Id. at ¶¶ 10-11, 19.) However, while on leave, Plaintiff was diagnosed with cancer so his leave of absence, set to expire on June 7, 2009, was extended for an additional six to eight weeks. ( Id. at ¶ 20.) Plaintiff alleges that he was approved to return to work on September 1, 2009, however, Plaintiff was advised that he was laid off as part of a reduction in force due to his position being eliminated. ( Id. at ¶¶ 22-23, 29.) Plaintiff was offered the opportunity to apply for other positions but Plaintiff alleges that all available positions were filled by younger, less qualified individuals. ( Id . at ¶¶ 26-28.) Similarly, Plaintiff alleges that his position was not in fact eliminated but was filled by a co-worker with less experience. ( Id. at ¶¶ 29-30.)

Defendant provided Plaintiff with a written Employee Separation Packet which contained, among other things, a separation agreement and general release for which he had forty-five (45) days to consider. *fn2 ( Id. at ¶37, 46.) Because Plaintiff was identified as an eligible employee pursuant to Defendant's severance plan, Plaintiff was placed on a 26 week severance leave of absence on the effective date of his layoff, September 1, 2009. ( Id. at ¶¶ 39-45.) During the 26 week period, Plaintiff was entitled to severance pay and continued participation in the employer sponsored health, dental and life insurance plans. ( Id. at ¶ 43.) Plaintiff claims that the "benefits were to continue uninterrupted pending the deadline for the employee to submit the un-revoked release." ( Id. at ¶ 44.)

On October 6, 2009, Plaintiff consulted with Jacqueline Vigilante, Esquire, ("Plaintiff's counsel") with regard to the separation agreement and general release. ( Id. at ¶ 49.) On October 7, 2009, Plaintiff's counsel communicated with Defendant via letter regarding the separation agreement and general release as well as concerns that Plaintiff was the victim of unlawful discrimination. ( Id. at ¶ 50.) In that letter, Plaintiff's counsel requested additional severance benefits on behalf of Plaintiff. ( See Defendant's Motion to Compel Discovery ("Def.'s Mot."), Exh. C, Doc. No. 23-7.) Plaintiff claims that Defendant terminated all severance pay and benefits continuation and the reason provided for the cessation of benefits was Plaintiff's retention of a lawyer. (Compl. ¶¶ 52-53.) Defendant does not appear to dispute suspending Plaintiff's severance benefits but claims it did so because it received, what it terms, a counter offer. (Defendant's Brief in Support of Motion to Compel Discovery (Def.'s Br.") 3, Doc. No. 23-1.) Plaintiff claims that Defendant told him that if he signed the separation agreement and general release, his pay and insurance would be reinstated. (Compl. ¶ 54.) Plaintiff claims that he relied on the pay and insurance to support his family, thus, he felt undue pressure to sign the agreement. ( Id. at ¶ 55.) In fact, Plaintiff claims that his dependent son was hospitalized in a treatment facility at the time the benefits were terminated and he was instructed to pick his son up due to the lack of insurance. ( Id. at ¶ 56-58.) Plaintiff claims that based upon the duress placed upon him by the cessation of his benefits, he signed and returned the separation agreement and release. ( Id. at ¶ 59-60.)

On April 25, 2012, the Honorable Joseph E. Irenas, S.U.S.D.J., entered an Order denying a Motion to Dismiss filed by Defendant. (April 25, 2011 Order, Doc. No. 11.) In its Motion, Defendant claimed that the separation agreement and general release signed by Plaintiff bars the present litigation. (April 25, 2011 Order ¶ 4). However, Judge Irenas found that Plaintiff had adequately plead facts to establish that the severance agreement and general release was entered into under duress in that Plaintiff alleged that Defendant promised to pay health benefits and terminated the benefits without cause while Plaintiff's dependent son was hospitalized and, thus, in need of the benefits. ( Id. at ¶ 6.) Therefore, Judge Irenas denied the Motion to Dismiss. ( Id.

Currently before the Court is Defendant's Motion seeking to compel the deposition of Plaintiff's counsel. ( See Def.'s Mot., Doc. No. 23.) Defendant wants to depose Plaintiff's counsel regarding conversations with Plaintiff concerning the release which he now claims was signed under duress. ( Id. Specifically, in its brief, Defendant argues, relying on Johnston Dev. Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348 (D.N.J. 1990), that there is no general prohibition against obtaining the deposition of adverse counsel and that Plaintiff cannot show there would be undue burden or oppression to preclude said deposition. (Def.'s Br. 7-8.) Moreover, Defendant argues that it is entitled to question Plaintiff's attorney with regard to privileged conversations held with Plaintiff because Plaintiff has impliedly waived the attorney-client privilege. (Def.'s Br. 8, Doc. No. 23-1.) In this regard, Defendant argues that Plaintiff put his communications with his attorney at issue by claiming he signed the release agreement under duress. (Def.'s Br. 8-10.)

In Plaintiff's Brief in Opposition to Defendant's Motion to Compel Discovery (Pl.'s Br.), Plaintiff posits several arguments against permitting the deposition of Plaintiff's attorney. (Pl.'s Br., Doc. No. 30.) Plaintiff argues that he was entitled to consult an attorney regarding the release agreement pursuant to the Older Workers Benefits Protection Act, thus, Defendant's attempt to now intrude upon those privileged communications would obliterate the protections afforded by the law. (Pl.'s Br. 7-9.) Second, Plaintiff argues that the issue before the Court is whether he voluntarily signed the release agreement. ( Id. 9-10.) In this regard, Plaintiff contends that he did not sign the release agreement voluntarily because he was under duress due to the fact that Defendant suspended his pay and benefits. ( Id. ) Therefore, Plaintiff argues, that any conversations he had with his attorney will not shed light on the voluntariness of the release especially since it is Defendant's action which caused the duress. ( Id. ) Similarly, Plaintiff argues that he has not put his communications with his attorney at issue for the same reasons and contends that many of the cases cited by Defendant are non-precedential and distinguishable from the issue presented here. ( Id. 10-13.) Furthermore, Plaintiff argues that the deposition of his attorney would result in undue burden or oppression because the information sought will not lead to the discovery of admissible evidence, is available from other, less intrusive sources, and will harm Plaintiff's representational rights. ( Id. 13-18.)

In Defendant's Reply Brief In Support of Motion to Compel Discovery (Def.'s Reply Br.), Defendant argues, relying on Livingstone v. North Belle Vernon Borough , 91 F.3d 515 (3d Cir. 1996), that the absence of a knowing waiver or the absence of a voluntary waiver both justify piercing the attorney-client privilege. (Def.'s Reply Br. 5., Doc. No. 32.) Further, Defendant argues that while Plaintiff attempts to only focus on the fact that his decision to sign the release was involuntary, Defendant points to one paragraph in Plaintiff's Complaint where he plead that his decision to the sign the agreement was not knowing. ( Id. 6.)

Thus, Defendant claims that Plaintiff's assertion that the release was not knowing and voluntary amounts to a waiver of the attorney-client privilege. ( Id. 6-7.)


"The Federal Rules of Civil Procedure adopt a liberal policy for providing discovery." Jones v. DeRosa, 238 F.R.D. 157, 163 (D.N.J. 2006). Federal Rule of Civil ...

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