NY Supreme Court Judge rules that construction employee’s deposition can resume

Is a man who served as both a project manager for the War Memorial Arena Expansion Project and a consultant to the City of Rochester in regards to the project exempt from answering certain questions during a deposition proceeding pursuant to CPLR 3101∴

In City of Rochester v. E&L Piping, Inc. and Fidelity & Deposit Co. of Maryland, the defendants asked New York State Supreme Court Judge Thomas Stander to grant an order compelling Barry Ingalsbe, an employee of LeCesse Construction Co., to answer questions asked during a deposition regarding communications between the city and LeCesse before an Agreement for Professional Services was made on March 10, 1999.

In addition, the defendants asked the court to order the plaintiffs to produce certain documents and resume the deposition of Ingalsbe.

Case Background

The litigation involves the City of Rochester’s Community War Memorial Arena Expansion Project. LeCesse Construction Co. was hired as the project manager while E&L Piping was the primary HVAC contractor.

Ingalsbe, an employee of LeCesse, was the senior project manager. He is a fact witness, because he was familiar with the day-to-day operations of the project.

The city terminated E&L Piping’s involvement with the project on March 19, 1999. However, the final change orders relative to extra work performed by E&L weren’t issued until November 1999.

Throughout the project and through the final change orders issued in November, LeCesse acted in its capacity as project manager. As part of its duties, LeCesse determined the claims to be paid and the credits to be applied in the final change orders.

E&L filed claims under the claims process outlined in the contract by a Supplement to Notices of Intention to File Claim, dated September 9, 1999 and amendments thereto on December 13, 1999 and January 11, 2000. During this time, LeCesse continued to assess E&L’s claims.

According to the city, in early 1998, the city asked LeCesse to act as a consultant to them in regards to the project’s related legal issues. LeCesse, through Ingalsbe, agreed to act as a consultant and as a result the city’s attorney had a number of consultations with LeCesse.

On March 10, 1999, the city and LeCesse entered into an Agreement for Professional Services. Under the terms of the agreement, “LeCesse was to be a consultant, as directed by the city’s agent, with respect to the city’s potential claims against parties performing construction work on the project.”

The agreement included: helping the city determine whether or not to pursue legal claims, assisting in the preparation of pleadings, participating in all aspects of discovery proceedings or trial; and giving testimony at trial.

On April 24, 2001 Ingalsbe’s deposition was held. During the deposition, counsel for the city directed Ingalsbe not to answer questions about a meeting held a week before between Mary Magee, counsel for the city and Ingalsbe. Magee asserted that a claim of “attorney’s work product” and “materials prepared in anticipation of litigation” to protect certain documents and testimony.

Ingalsbe’s refusal led to this motion.

Court Ruling

The city did not object to the deposition of Ingalsbe and other LeCesse employees because they are witnesses to the issues in this action. However, Judge Stander noted, that LeCesse and Ingalsbe “were at times acting in a dual capacity as both the on-site project manager and consultant to the city on legal issues related to the project.”

“The question before the court is what effect this dual position of the witness has on his obligation to answer certain questions,” Judge Stander wrote in his decision for the court. “Are such questions protected by CPLR 3101 or is some or all of the protections afforded a consultant to litigation lost because the witness is obligated to testify as a fact witness∴”

Judge Stander determined that Ingalsbe, as a consultant to litigation would generally be entitled to “protections from disclosure of materials prepared in anticipation of litigation by a consultant.” But hiring a fact witness as a litigation consultant can’t be used to narrow or restrict the testimony or disclosures by the fact witness.

“This is particularly true because the city when it contracted with LeCesse as a consultant on litigation issues, was fully aware that LeCesse’s employees were or would be fact witnesses in any litigation,” Judge Stander found. “Therefore this court must guard carefully the right of the examining party not to be limited in its scope of the examination by the mere fact of the dual role of the witness. Barry Ingalsbe must be allowed to testify on all issues that are related, directly or indirectly with LeCesse’s position as the project manager.”

Judge Stander found that Ingalsbe must answer any questions related to the tasks performed as project manager. Ingalsbe must answer questions regarding communications made pursuant to the Agreement for Professional Services on March 10, 1999.

In addition, the defendants can ask questions regarding documents that Ingalsbe reviewed before his deposition.

“Further, defendant is entitled to inquire whether Ingalsbe or any other LeCesse employee witnesses were coached or prepared for their deposition or whether the witness discussed the document review with anyone,” Judge Stander determined. “The defendants are not entitled to ask questions regarding separate services LeCesse provided under the Agreement for Professional Services which involve material prepared in anticipation of litigation.”

In addition, Judge Stander ordered documents 49, 51, 52, 55 and 59 be provided to the defendant and that Ingalsbe’s deposition be resumed.