Berry v. Town: multiple filings as judge orders Town to disclose communication with counsel regarding investigation of Berry’s harassment complaints

There has been a flurry of filings in Berry v. Town of Front Royal federal discrimination lawsuit, though no trial date has been established since the case was twice continued.

Attorneys for the Town of Front Royal missed the April 14, 2022, 5:00 pm deadline to file objections to Judge Joel C. Hoppe’s March 31 Memorandum and Opinion, which partially ruled in Berry’s (referred to as “Brown” in court documents due to her marriage after the suit’s initial filing) favor regarding the Town’s attorney-client privilege related to communication with its legal counsel of record, Julie Judkins.

Judge Hoppe cited the Oct. 7, 2021, deposition of Matt Tederick, in which the former interim town manager stated that Ms. Judkins’s role was “to advise Town Council as it relates to a complaint that was made by [Brown]” and further testified that the Town had retained a firm specializing in employment matters because he “wanted an outside set of eyes, an expert in personnel matters to offer legal advice and counsel in the event it was needed.”

Judge Hoppe wrote in his Memorandum and Opinion that any advice given by Ms. Judkin regarding Berry is protected by attorney-client privilege. However, he ruled that communications with Judkins about the investigation of Brown’s harassment complaints, her conclusions from the investigation, and her advice about any remedial measures taken in response to the alleged harassment were not covered by attorney-client privilege. Hoppe, in the March 31 opinion, ordered the Town to disclose those communications.

On Friday, April 22, 2022, after being advised of the above, an oral order was issued granting the Town’s motion for an extension to file a reply. Judge Thomas T. Cullen set a filing deadline of 5:00 pm on Thursday, April 28. Heather K. Bardot, counsel for the Town of Front Royal filed objections at 9:54 PM, nearly five hours past the deadline. The filing stated that the deadline had been overlooked when the order was received because “the court did not mention it would be shortening the time to file objections during the April 6, 2022, status conference, and defense counsel did not contemplate that occurring, or catch that deadline.”

Per 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, counsel was notified that the court had a conflict with the hearing date.

Though two alternate dates were offered, both sides had conflicts. At that point, the court indicated that the matter would be decided on the pleadings, which at that time consisted of the objections and the reply to the objections.

Heather K. Bardot, counsel for the Town, on April 25, submitted a memorandum in support of a motion to extend time, writing,
“Counsel for defendant spent the weekend of April 23-24, 2022, preparing for a trial on April 26, 2022, after finishing a four-day trial, April 18-21, 2022. Counsel then spent April 25, 2022, preparing witnesses for trial, and will be in trial on April 26, 2022.

While no one else has done any work on this file, defense counsel had hoped she might be able to garner some assistance from another attorney in her office. However, one of the two attorneys whom she would typically have turned to for help became sick with COVID on Friday, and the other left on Friday to travel home to be with her mother who is in hospice.”

Timothy Cupp, counsel for Jennifer Berry Brown, on Wednesday, April 27 filed an opposition to Bardot’s motion to extend time stating, ‘” The failure here by the Town’s attorney to “catch the deadline” simply is insufficient to justify an untimely filing.” He asked the judge in that filing to deny the Town’s Motion to Extend.

On Thursday, April 28, counsel for the Town, Heather K. Bardot filed a Reply to Plaintiff’s Opposition to Defendant’s Objections to Magistrate Judge’s Memorandum Opinion and Order motion in the case, writing that the Town “does not believe that the court has authority 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 after being served with a copy. A party may not assign as error a defect in the order not timely objected to.

The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”

Bardot further wrote in the memorandum, “Should the court find that it has authority under Rule 72(a) to enter an order shortening the time for filing objections to a magistrate’s order and opinion, the Town requests that the court exercise its discretion and grant its Motion to Extend Time and consider the objections the Town has made to the Magistrate Judge’s Memorandum Opinion and Order.”

Bardot maintains that the delay was “but a few hours … has no impact on the proceedings, and the Town sincerely and in good faith believed, based on a status conference with the court on April 6, 2022, that the objections were to be filed at the normal time provided by Rule 72(a), i.e. midnight.”

The Town maintains that the communications Hoppe ordered the Town to provide to Berry Brown are, in fact, protected by attorney-client privilege, and requested that “this court reverse the Magistrate Judge’s Memorandum Opinion and Order dated March 31, 2022, insofar as it holds that the Town waived the attorney-client privilege with Julia Judkins, Esquire, thereby requiring the Town to disclose its communications with Ms. Judkins as it relates to the Town’s investigation of Jennifer Berry Brown’s sexual harassment complaint.”

In a related matter, the Town filed a motion on April 27, to withdraw Judkins as counsel for the Town of Front Royal, Virginia, citing her Dec. 31, 2021, retirement from the firm of Bancroft, McGavin, Horvath & Judkins, P.C. The judge has not ruled on the matter.

As of Friday, April 29, the court has not ruled on either of the Town’s filings.

Ms. Berry Brown filed a civil complaint in federal court on Jan. 4, 2021, claiming sexual harassment by former Front Royal elected officials and wrongful termination from her job as clerk of council as retaliation.

A civil jury trial was slated to be held May 31-June 3, in U.S. District Court for the Western District of Virginia in Harrisonburg before a series of March filings caused U.S. Judge Thomas T. Cullen to continue the trial. It was initially set to begin on February 22, 2022, before being continued to May 31.

Berry Brown is being 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 as a second respondent to the complaint.