Recent MIIA News
Cities, towns should have policy on depositions
By Michael CusackIt is not uncommon for a police officer or other municipal employee to receive either a subpoena for records or a notice of deposition related to private litigation. Parties to an auto accident, for example, may want an officer to testify as to what she or he saw. Or parties to a dispute may want to hear how the governing board viewed the dispute.
While the great majority of these requests are straightforward, on occasion they are attempts to gain information that could result in adding the municipality as a defendant in litigation. Plaintiff or defense attorneys may seek records or testimony before a municipal counsel becomes involved, and these efforts may succeed in obtaining information that hurts the municipality’s position. In some cases, the information is provided that wasn’t even required to be released.
With increasing frequency, this information is then used as the basis for a lawsuit against the municipality or its employees. In many circumstances, no claim against the town would have been filed if not for information provided out of context or information that should not have been released.
Here are some examples of these pre-litigation tactics:
• In a case of an auto accident involving two privately owned vehicles, counsel took the deposition of a town employee, who attended without counsel. After questioning the employee at length about the town’s road maintenance program, plaintiff attorney filed suit against the town using specific statements made during the deposition as the basis of the lawsuit.
• In a case involving a civil rights allegation, plaintiff attorney sent a Freedom of Information Act request to a town requesting all documents related to a specific filing. The response was sent without review by town counsel, and the provided documents included correspondence between town counsel and the involved board – information that was exempt from public disclosure, but, once it was obtained, became the basis for a lawsuit against the town.
• In a case involving a residential fire, depositions were taken of several town fire personnel who appeared without representation. Following the depositions, the plaintiffs attempted to add the town as a defendant to the litigation.
The dissemination of information to the public is both an obligation and a challenge for all municipalities. Sometimes, in an effort to be both compliant and transparent, municipal officials and employees can unintentionally create complications.
In the face of strict legal requirements to produce information, how can a municipality comply while still protecting itself? Here are some suggested guidelines:
1. Have a gatekeeper: Does your municipality have a central point for handling public records requests? Many cities and towns have such a plan for Freedom of Information Act requests, but what about subpoenas or deposition requests? These requests are simply another form of public information request. If the municipality doesn’t track these requests, they may be happening without the knowledge of local officials or counsel. Problems can occur when employees attend depositions without prior review and assessment by the municipality, municipal counsel, or the municipal insurer to determine if counsel need be assigned. Establishing a point of contact for any non-routine requests for information, documents and depositions will help to separate the mundane from the problematic.
2. Have a policy: If they haven’t already, cities and towns should implement a policy to require anyone who receives a deposition notice or similar inquiry to report that request to the designated gatekeeper for review and assessment.
3. Use your resources: The gatekeeper can generally determine if a request is ordinary business or something that merits greater review. But he or she should not hesitate to review the matter with municipal counsel or their insurer to get a sense of any potential exposure the municipality may face. This may take nothing more than a phone call.
4. Value your information: State law specifies circumstances and situations when documents or information may be held in privilege until pending issues are resolved. Municipal management and boards work hard to identify the information subject to privilege and to maintain that privilege. But they should also make sure that staff understand the existence of privilege and when it comes into play.
Michael Cusack is MIIA’s claims manager.