Berry v. Town of Front Royal: Judge rules Town must produce communications with hired attorney, Berry may re-depose Tederick and LeTasha Thompson

Following a Tuesday, May 3 ruling by United States Judge Thomas T. Cullen the Town of Front Royal must provide all communications with an attorney hired to assist with the investigation of sexual harassment claims lodged by former Front Royal Town Council clerk Jennifer Berry Brown.

Cullen’s ruling upheld U.S. Magistrate Joel C. Hoppe’s order that the Town must disclose all communications with attorney Julia Judkins regarding that investigation, Judkins’s factual findings and conclusions from the investigation and her advice about any remedial measures taken in response to any alleged harassment. He also ruled that Berry Brown may re-depose Councilmember Letasha Thompson and the Town’s corporate designee, Matthew Tederick. (A corporate designee is a person who, during a lawsuit’s discovery phase, provides testimony that becomes the binding testimony of the corporation, or in this case, the Town of Front Royal.)

In Judge Hoppe’s March 31 Memorandum and Opinion, which partially ruled in Berry Brown’s favor, he 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 legal advice given by Ms. Judkin regarding Berry is protected by attorney-client privilege, though 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 ordered the Town to disclose those communications.

Judge Cullen wrote that Hoppe found, “based largely on Tederick’s testimony, that the Town hired Judkins to investigate Brown’s complaints and ensure the investigation was conducted lawfully, and that the Town apparently relied on Judkins (at least in part) to determine if (Councilman William) Sealock’s behavior constituted sexual harassment or created a hostile work environment.”

Cullen continues, “It is worth noting that Tederick repeatedly stated that the Town would rely on the opinion of “legal counsel and the HR department” rather than exclusively relying on outside counsel.”

Judge Cullen opined that “the Town relied on Judkins both to conduct its investigation and to reach essential conclusions that bear on the ultimate issue of the Town’s liability for Sealock’s alleged harassment. That reliance necessarily puts Judkins’s advice to the Town at issue.”

He wrote that, at some point, the Town hired attorney Julia Judkins as outside counsel to act as “an expert in personnel matters and to offer legal advice and counsel in the event it was needed.” (From the Oct. 7, 2021, deposition of Matthew Tederick.)

Cullen continued, “The Town must disclose, as Judge Hoppe directed, all communications with Judkins regarding that investigation, Judkins’s factual findings and conclusions from the investigation, and her advice about any remedial measures taken in response to Sealock’s alleged harassment.”

Judge Cullen ordered that the “Town is ordered to produce all documents and communications related to its former outside counsel, Julia Judkins’s, investigation of and involvement in Plaintiff Jennifer Berry Brown’s sexual harassment allegations. Brown may further re-depose Councilmember Letasha Thompson and the Town’s corporate designee, Matthew Tederick, about the same topic. “

Both parties were ordered to schedule a status conference as soon as practicable to discuss the effect of this ruling on the parties’ pending motions for summary judgment.

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 for that filing.