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August 11, 2014

Pa. High Court Limits Discovery In Turnpike Pay-To-Play

This article originally ran in Law360 on August 11, 2014.

 

The Pennsylvania Supreme Court on Monday temporarily placed limits on the extent of documents the state’s attorney general must turn over to a group of former high-ranking officials with the Pennsylvania Turnpike Commission and a convicted former state senator under indictment in a bid-rigging scheme.

The high court said that the defendants in the case — who include former commission CEO Joseph Brimmeier, former COO George Hatalowich, former Chairman Mitchell Rubin and former state Sen. Robert Mellow — are only entitled to receive selected redacted documents garnered from the commission’s hard drive until a lower court reaches a decision on the discovery requests.


The commission sought emergency relief after the state’s Superior Court declined to place a stay on a trial court order obligating it to turn over 12 terabytes of data collected during a grand jury investigation. An appeal of the trial court order is currently pending before the Superior Court.

“Given the nature of the materials the trial court essentially authorized for unlimited disclosure to defense counsel, the commission is obviously aggrieved and directly so," Chief Justice Ronald Castille said in a concurring statement that accompanied the order. "It is one thing for a bell that cannot be unrung to sound in the narrow confines of a confidential, sealed grand jury investigation; it is quite another when it is in the context of a specific criminal prosecution, and the protection of private and privileged information consigned to defense counsel whose primary duty is to their specific clients and not to the commission or its personnel."

The defendants were charged in March 2013 of being involved in an alleged scheme to steer turnpike contracts to political donors rather than to the lowest or most qualified bidders for the work.

According to the presentment, Mellow, a Democrat and former minority floor leader in the state senate, used the commission as a means to raise money for his political campaigns by asking Hatalowich, Brimmeier and Rubin to invite engineers and other contractors to fundraisers they were tasked with coordinating.

The case was scheduled to go to trial on August 18, but after Dauphin County Court of Common Pleas Judge Richard Lewis denied the commission’s bid for a protective order surrounding the allegedly privileged and confidential material — as much as 30 million documents — the commission appealed to the Superior Court.

The trial court, however, declined to place a stay on the matter. The Superior Court, for its part, initially granted a stay, before vacating it a month and a half later.

This move prompted the commission to file an emergency application for a stay to the high court, pending the completion of the appeal.

In response, the court on Monday placed a set of restrictions on the material that the attorney general must hand over, limiting it to documents that the attorney general’s office has reviewed and deemed relevant to the case and properly subject to discovery.

The state is due to file a brief in the Superior Court proceedings on Wednesday.

A representative for the attorney general’s office declined to comment on the ruling on Monday.

Mellow is represented by Daniel Thomas of Myers Brier & Kelly LLP.

Brimmeier is represented by William Winning of Cozen O’Connor.

Hatalowich is represented by William Fetterhoff of Fetterhoff & Zilli.

Rubin is represented by Burton Rose and David Shaprio.

Other defendants are represented by Michael Engle of Greenblatt Pierce Engle Funt & Flores LLC and Mark Sheppard of Montgomery McCracken Walker & Rhoads LLP.

The Turnpike Commission is represented by Joshua Voss, Matthew HaverstickLorie Dakessian and Andrew Garden of Conrad O’Brien PC.

The state is represented by Laurel Brandstetter and Christopher Schmidt of the attorney general’s office.

The case is Commonwealth of Pennsylvania v. Suzenski et al, case number 108 MM 2014, in the Supreme Court of Pennsylvania.

--Editing by Philip Shea.

 

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