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HomeMy WebLinkAbout04-15-09 (2)N C~ c' IN THE COURT OF COMMON PLEAS ~" ~ ~"' ~- ~ ~~ '"~ OF CUMBERLAND COUNTY, PENNSYLVANIA , ! ~~__ ~? ~' IN RE ESTATE OF ROBERT M. MUMMA, Deceased. - ' u c.,-~ :t~ ~ ,-~; -, ; - _-~ ORPHANS' COURT ~3~`ISI6~ . ~~ ~ r.a . ~-~ • ~ ~ . N0.21-86-398 _~ ' .) c 5 .. ~ '.,, 1 EMERGENCY MOTION OF MORGAN, LEWIS & BOCKIUS LLP TO QUASH SUBPOENAS TO ATTEND AND TESTIFY DIRECTED TO FORMER LITIGATION COUNSEL OF BARBARA MCK. MUMMA AND LISA M. MORGAN Pursuant to Rule 234.4(b) of the Pennsylvania Rules of Civil Procedure, Morgan Lewis & Bockius LLP ("Morgan Lewis"), counsel for Barbara McK. Mumma and Lisa M. Morgan, executrices of and trustees under the will of Robert M. Mumma, respectfully moves this Court for an order to quash the Subpoenas to Attend and Testify that Robert M. Mumma, II has directed to Thomas Kittredge and Marc Sonnenfeld of Morgan Lewis. In support of this motion, Mrs. Mumma and Mrs. Morgan aver as follows: Pursuant to Pa. R. C. P. 234.4, the Court has the power to "protect a party, witness or other person from unreasonable annoyance, embarrassment, oppression, burden or expense" in connection with the service of a subpoena. 2. On April 10, 2009, a process server left two subpoenas in the above-captioned matter at the offices of Morgan Lewis in Philadelphia, Pennsylvania. These subpoenas were directed to "Timothy Kittredge" - presumably a reference to Thomas M. Kittredge, Morgan Lewis senior counsel-- and Marc J. Sonnenfeld, a Morgan Lewis partner in its Litigation Practice. On their face, these subpoenas order these gentlemen to testify on behalf of Robert M. Mumma, II in a Court hearing scheduled in the above-captioned action LAW OFFICES SNELBAKER & on Apri121-23, 2009. BRENNEMAN. P.C. 3. Messrs. Kittredge and Sonnenfeld each at one time served as litigation counsel to LAW OFFICES SNELBAKER EC BRENNEMAN. F.C. Mrs. Mumma and Mrs. Morgan in various litigation matters adverse to Mr. Mumma, II. Neither of these gentlemen have engaged in legal work on behalf of Mrs. Mumma and/or Mrs. Morgan since prior to 2000. 4. Mr. Mumma, II has provided no indication as to what testimony he intends to elicit from Messrs. Kittredge or Mr. Sonnenfeld. During the course of the above-referenced proceedings, Mr. Mumma, II has not sought to depose either of these gentlemen, nor has he previously made any suggestion that they possess information relevant and admissible to the proceedings or, more particularly, to matters at issue in the hearing scheduled for April 21-23. 5. On October 27, 2008, Mr. Mumma, II deposed Joseph A. O'Connor in this action. Mr. O'Connor, while a partner at Morgan Lewis, advised Barbara McK. Mumma and Lisa M. Morgan for a period of over 20 years on various issues and matters in their capacities as executrixes and trustees under the will of Robert M. Mumma, deceased. Mr. O'Connor has been subpoenaed to appear at the hearing scheduled for Apri121-23 and will be present. 6. As a practical matter, any knowledge or familiarity that Mr. Kittredge and Mr. Sonnenfeld have with respect to the estate of Mr. Mumma comes from their pre-2000 work as litigation counsel for Mrs. Mumma and Mrs. Morgan. 7. To the extent that Messrs. Kittredge and Sonnenfeld possess information even tangentially relevant to the Apri121-23 hearing, such information is likely to be protected from disclosure by the attorney-client privilege in that it relates to the conduct of litigation 2 in which Mr. Mumma, II was an adverse party. Objector Barbara Mann Mumma also was adverse to Mrs. Mumma and Mrs. Morgan in prior litigation. 8. To the extent that Messrs. Kittredge and Sonnenfeld possess non-privileged information relevant to the Apri121-23 hearing, i.e., information regarding events occurring during the litigations for which they served as litigation counsel, those events are a matter of public record of which the Auditor or the Court may take judicial notice. No testimony from Mr. Kittredge or Mr. Sonnenfeld is necessary to present evidence of such matters in the hearing. 9. This Court should quash the subpoenas at issue because they seek testimony that is either privileged or a matter of public record. Moreover, as Messrs. Kittredge and Sonnenfeld acted as litigation counsel, and not as estate and trusts counsel, it is difficult to understand what possible relevance any testimony they might give would have to the matters at issue in the April 21-23 hearing. 10. As a result, Messrs. Kittredge and Sonnenfeld should not be burdened with the inconvenience, disruption and annoyance of having to appear at the hearing to provide such information. 11. Because the subpoenas call for attendance and testimony at the hearing currently scheduled to begin on Apri121, 2009, Morgan Lewis respectfully requests that the Court decide this matter prior to the hearing. LAW OFFICES SNELBAKER Ef BRENNEMAN. P.C. 12. Because Mr. Mumma, II issued the subpoenas to compel the attendance of Messrs. LAW OFFICES SNELBAKER BC BRENNEMAN, F.C. Kittredge and Sonnenfeld, for purposes of C.C.R.P. 208.2(d), Mr. Mumma does not consent to this Motion. 13. The Honorable J. Wesley Oler, Jr. has ruled upon discovery and other issues in this case. WHEREFORE, for the foregoing reasons, and the reasons set forth in the supporting memorandum of law, Morgan, Lewis &Bockius LLP respectfully requests that this Court grant its motion to quash, and enter an Order in the form attached. Dated: April 15, 2008 4 Respectfully submitted, Keith O. Brenneman Snelbaker & Brenneman, P.C. 44 W. Main St., P.O. Box 318 Mechanicsburg, Pennsylvania Attorney for Morgan, Lewis &Bockius LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE ESTATE OF ORPHANS' COURT DIVISION ROBERT M. MUMMA, Deceased. N0.21-86-398 MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION OF MORGAN, LEWIS & BOCKIUS LLP TO QUASH SUBPOENAS TO ATTEND AND TESTIFY DIRECTED TO FORMER LITIGATION COUNSEL OF BARBARA MCK. MUMMA AND LISA M. MORGAN Morgan Lewis & Bockius LLP ("Morgan Lewis"), counsel for Barbara McK. Mumma and Lisa M. Morgan, executrices of and trustees under the will of Robert M. Mumma, respectfully submits this memorandum of law in support of its emergency motion to quash the Subpoenas To Attend And Testify directed to Morgan Lewis litigators Thomas Kittredge and Marc Sonnenfeld. INTRODUCTION The proceedings to administer the estate of Robert M. Mumma have been ongoing for more than 20 years. Throughout that time, the law firm of Morgan Lewis has represented Mrs. Mumma and Mrs. Morgan and provided them with advice regarding a broad range of estate-and trust-related matters. In addition, Morgan Lewis has acted as litigation counsel for Mr. Mumma and Mrs. Morgan in various litigation matters adverse to Mr. Robert M. Mumma, II in which he has challenged administration of the estate and trusts. Among the Morgan Lewis attorneys who have served as litigation counsel to Mrs. Mumma and Mrs. Morgan are Thomas M. Kittredge, senior counsel at Morgan Lewis, and Marc J. Sormenfeld, a Morgan Lewis partner who practices in the firm's Litigation Practice. Both of these gentlemen are resident in Morgan Lewis' Philadelphia office. During the late 1980s and early 1990s, Mr. Kittredge served as litigation counsel to Mrs. Mumma and Mrs. Morgan in proceedings adverse to Mr. Mumma, II, but has not engaged in legal work on their behalf since 1992. During the 1990s, Mr. Sonnenfeld served as litigation counsel to Mrs. Mumma and Mrs. Morgan in proceedings adverse to Mr. Mumma, II, but has not engaged in legal work on their behalf since. Neither of these gentlemen have served as estates and trusts counsel to Mrs. Mumma and Mrs. Morgan. This Court has scheduled a hearing in this proceeding on Apri121-23 to consider objections to Mrs. Mumma and Mrs. Morgan's administration of Mr. Mumma's estate. On April 10, 2009, a process server left two Subpoenas To Attend And Testify at Morgan Lewis' Philadelphia offices. These subpoenas are directed to "Timothy Kittredge" (presumably a reference to Thomas Kittredge) and Mr. Sonnenfeld. On their face, the subpoenas order the gentlemen to testify on behalf of Mr. Mumma, II in the Apri121-23 hearing. Mr. Mumma, II has not identified any basis to have these attorneys appear, nor has he given any indication of the testimony they are expected to provide. During the course of the above-referenced proceedings, Mr. Mumma, II has not sought to depose either of these gentlemen, nor has he previously made any suggestion that they possess information relevant and admissible to the proceedings, or more particularly, to matters at issue in the hearing scheduled for Apri121-23. ARGUMENT Rule 234.4 of the Pennsylvania Rules of Civil Procedure provides: A motion to quash a subpoena ... may be filed by a party, by the person served or by any other person with sufficient interest. After hearing, the court may make an order to protect a party, witness or other person from unreasonable annoyance, embarrassment, oppression, burden or expense. 2 Pa. R. C. P. 234.4(b). The subpoenas directed to Messrs. Kittredge and Sonnenfeld warrant the protection of Pa. R. C. P. 234.4 for several reasons. First, because these attorneys served as litigation counsel to Mrs. Mumma and Morgan more than 17 and 10 years ago, respectively, in proceedings adverse to Mr. Mumma, II and Barbara Mann Mumma, and because they have neither served as trusts and estates counsel, they are not likely to possess information relevant to subject matter of the April 21-23 proceeding. Second, to the extent Mr. Mumma, II seeks to elicit testimony from Messrs. Kittredge and Sonnenfeld regarding communications and/or advice exchanged with Mrs. Mumma or Mrs. Morgan, such testimony is protected from disclosure by the attorney-client privilege. Third, to the extent that Mr. Mumma, II seeks to elicit testimony regarding non-privileged information about proceedings for which Messrs. Kittredge or Sonnenfeld served as litigation counsel, that information would be a matter of public record for which the Auditor or the Court may take judicial notice. As a result, Messrs. Kittredge and Sonnenfeld should not be burdened with the inconvenience, disruption and annoyance of having to appear at the Apri121-23 hearing to provide irrelevant, privileged or otherwise publicly available information. This Court should quash the subpoenas at issue. A, The Court Should Quash The Subpoenas Because Messrs. Kittredge &Sonnenfeld Are Unlikely To Have Information Relevant To The Apri121-23 Hearin. This Court should quash the subpoenas, and relieve Messrs. Kittredge and Sonnenfeld from having to appear personally at the Apri121-23 hearing, because their testimony would be irrelevant to the issues of the hearing. Mr. Mumma, II has not identified any basis to have these gentlemen appear, nor has he indicated the subject matters on which they are expected to provide testimony. As such, Morgan Leiws can only speculate that Mr. Mumma, II wishes to elicit testimony regarding the actions in which Messrs. Kittredge and Sonnenfeld served as litigation counsel for Mrs. Mumma and Mrs. Morgan more than 17 and 10 years ago, respectively. 3 The April 21-23 hearing involves the objections of Mr. Mumma, II to the administration of the Mumma estate by Mrs. Mumma and Mrs. Morgan. Messrs. Kittredge and Sonnenfeld have never acted as estate and trusts counsel. Rather, they acted as litigation counsel in pre-2000 proceedings. These proceedings for which the attorneys may have knowledge or familiarity have no bearing on the issues of the Apri121-23 hearing. Testimony regarding such actions is therefore irrelevant and inadmissible.l See Pa. R. Evid. 402 ("Evidence that is not relevant is not admissible."). It would be unduly burdensome, oppressive and unreasonably annoying for those individuals to have to appear in Court when they do not have relevant information. Consequently, this Court should quash Mr. Mumma, II's subpoenas under Pa. R. C. P. 234.4(b). B. The Court Should Quash The Subpoenas Because Any Information That Former Litigation Counsel May Possess Is Likely To Be Privileged And Protected From Disclosure. Mr. Mumma, II may seek to elicit testimony from the Morgan Lewis litigators regarding their communications with and advice to Mrs. Mumma and Mrs. Morgan. Assuming arguendo that such testimony was somehow relevant to the Apri121-23 hearing, the Court should nonetheless quash the subpoenas because any testimony is likely to be protected from disclosure by the attorney-client privilege. It is well established that "[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged." Fisher v. United States, 425 U.S. 391, 403 (1976). See also 42 Pa.C.S.A. § 5928 ("In a civil matter counsel shall not be competent or ~ Given the irrelevance of the anticipated testimony, one can only assume that Mr. Mumma, II is using the trial subpoenas as a substitute for pre-trial discovery, and is seeking to conduct a "fishing expedition." Pennsylvania courts do not allow such "fishing expeditions" even during the more liberal discovery process. See, ~, In re Thompson's Estate, 416 Pa. 249, 206 A.2d 21, 28 (1965) ("`[F]ishing expeditions' are not to be countenanced under the guise of discovery..."). A number of courts have rejected such belated attempts to obtain discovery. See, eg., Puritan Inv Corte v ASLL Corp., No. Civ. A. 97-1580, 1997 WL 793569, at *2 (E.D. Pa. Dec. 9, 1997) ("[A] trial subpoena is not an appropriate means of ascertaining facts or uncovering evidence."). See also Hatchett v. United States, No. 94-CV-74708-DT, 1997 WL 397730, *3 (E.D. Mich. Feb. 28, 1997) (trial subpoena cannot be used to obtain belated discovery after discovery period has ended). 4 permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client."). The policy behind the privilege is well established: full and frank communication between attorneys and their clients must be encouraged because the administration of justice in a complex society depends upon the availability of sound legal advice, and in turn, the soundness of legal advice depends upon clients' willingness to present full disclosures to their attorneys. See Uuiohn Co v. United States, 449 U.S. 383, 389 (1981). The attorney-client privilege has application to communications between trustees and their attorneys who litigate disputes on their behalf. As courts in Pennsylvania and other jurisdictions have recognized, legal advice obtained by a trustee, where its interests differ from the interest of beneficiaries, is protected by the attorney-client privilege. See Follansbee v. Gerlach, 56 Pa. D. & C. 4th 483, 486 (Pa. Com. Pl. 2002); Barnett Banks Trust Co., N.A. v. Com~son, 629 So.2d 849 (Fla. Dist. Ct. App. 1993) (court holds that a trust beneficiary who litigates a position adverse to the trust may not obtain from the trustee materials ordinarily protected by the attorney-client privilege and work product doctrine). Messrs. Kittredge and Sonnenfeld each at one time acted as litigation counsel for Mrs. Mumma and Mrs. Morgan in actions in which Mr. Mumma, II and/or Barbara Mann Mumma has challenged their administration of the estate and trusts. Necessarily, Mrs. Mumma and Mrs. Morgan's interest in these proceedings differed from those of their challengers. Any advice and communications shared between Messrs. Kittredge and/or Sonnenfeld with Mrs. Mumma and/or Mrs. Morgan in the course of these proceedings were secured for the protection of Mrs. Mumma and Mrs. Morgan. Messrs. Kittredge and Sonnenfeld have not acted as estate and trusts counsel, 5 and did not render legal services for the purpose of general trust administration.? As such, any communications and/or advice shared between the attorneys and their clients would be protected from disclosure by the attorney-client privilege, and any testimony regarding such communications and/or advice is inadmissible. This Court should therefore quash the subpoenas directed to Mrs. Mumma and Mrs. Morgan's litigation counsel under Pa.. C. P. 234.4(b). C. The Court Should Quash The Subpoenas Because Any Non-Privileged Information That Former Litigation Counsel May Possess Is A Matter Of Public Record For Which The Court Can Take Judicial Notice. To the extent that Messrs. Kittredge and Sonnenfeld possess non-privileged information regarding the actions for which they served as counsel - i.e., information regarding statements made in those proceedings, or of the events that occurred during those litigations -that information would be accurately reflected in the public records of those actions. Such records can be retrieved from sources readily available to Mr. Mumma, II, including court dockets and the personal files of Mr. Mumma, II (who, as a party to the proceedings for which Messrs. Kittredge or Sonnenfeld served as litigation counsel, would have been served with copies of pertinent materials). The Auditor or the Court can therefore take judicial notice of any such non- privileged information under Rule 201 of the Pennsylvania Rules of Evidence. See, e.g~ Pa. R. Evid. 201(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of ?There exists a fiduciary exception to the attorney-client privilege, but it does not apply to any testimony that Mr. Mumma, II may seek to elicit from Messrs. Kittredge and Sonnenfeld. The exception provides that the attorney-client privilege does not apply to communications between a trustee and an attorney it consulted in its fiduciary capacity on the subject of trust administration. See Follansbee, 56 Pa. D. & C. 4th at 486-87. Neither Mr. Kittredge nor Mr. Sonnenfeld provided Mrs. Mumma and Mrs. Morgan such advice. They are litigators, not trusts and estates lawyers. Their communications with Mrs. Mumma and Mrs. Morgan were made in their capacity as litigation counsel in proceedings adverse to Mr. Mumma, II. 6 accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.") It would be unduly burdensome, unreasonably annoying and tremendously inconvenient for Messrs. Kittredge and Sonnenfeld, based in Philadelphia, to have to take time out of their schedules and travel from Philadelphia to Carlisle to provide information for which the Auditor or this Court can take judicial notice. As such, this Court should quash the subpoenas directed to them under Pa. R. C. P. 234.4(b). CONCLUSION For the foregoing reasons, Morgan, Lewis &Bockius LLP respectfully requests the Court to quash the subpoenas directed to Messrs. Kittredge and Sonnenfeld. Respectfully submitted, Dated: April 15, 2008 i~~~~ Keith O. Brenneman Snelbaker & Brenneman, P.C. 44 W. Main St., P.O. Box 318 Mechanicsburg, Pennsylvania Attorney for Morgan, Lewis &Bockius LLP 7 CERTIFICATE OF SERVICE I certify that on this 15th day of April, 2009, I served a true and correct copy of the forgoing Emergency Motion Of Morgan, Lewis & Bockius LLP To Quash Subpoenas To Attend And Testify Directed To Former Litigation Counsel Of Barbara Mck. Mumma And Lisa M. Morgan, and supporting memorandum, by overnight mail and first-class mail as noted below upon: Robert M. Mumma, II 840 Market Street, Suite 164 Lemoyne, PA 17043 (via Federal Express and first class mail) and Box 58 Bowmansdale, PA 17008 (via first class mail) and 6880 S.E. Harbor Circle Stuart, FL 34996-1968 (via Federal Express and first class mail) George B. Faller, Jr., Esquire 10 East High Street Carlisle, PA 17013 (via first class mail) Ralph A. Jacobs, Esquire Jacobs & Singer LLC 1515 Market Street, Suite 705 Philadelphia, PA 19102 (via Federal Express and first class mail) Linda M. Mumma 512 Creekview Road Mechanicsburg, PA 17055 (via Federal Express and first class mail) and P.O. Box 840 Mechanicsburg, PA 17055 (via first class mail) and 2038 Spruce Street, Apt. 3R Philadelphia, PA 19103 (via Federal Express and fist class mail) Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 (via first class mail) illy-` Dated: April 15, 2008 Keith O. Brenneman