Judge OKs Lenhardt Deposition

Posted February 13, 2004 at 3:35pm

Former Sergeant-at-Arms Alfonso Lenhardt was scheduled to be deposed Friday in conjunction with a racial discrimination lawsuit, just days after a federal judge ruled that the Senate’s employment counsel must allow the depositions of several Senate employees in the same case.

The ruling, issued by U.S. Magistrate Judge John Facciola on Feb. 9, allows attorneys for former Sergeant-at-Arms employee Roy Banks to depose several managers and Lenhardt, who led the office until March 2003.

Banks filed three separate lawsuits (now being heard as a single case) against the Sergeant-at-Arms office between January and October 2003 in which he alleged discrimination based on race, age, gender and disability that led to his dismissal in May of that year. Banks, who is black, served as the facilities management assistant branch manager.

Dispute over the depositions arose in September 2003, when Banks’ lawyer William Farley interviewed Alvin Macon, who now serves as environmental services manager.

“During the course of the deposition … plaintiff’s counsel posed four questions to which objection was made,” Facciola noted in his opinion. Two of those objections were dropped by the Office of the Senate Chief Counsel for Employment prior to Facciola’s decision.

The disagreements focused, in part, on the attorney-client relationship established between Macon and the employment counsel.

“At Macon’s deposition, it appeared that Farley was intent on pushing the boundaries to try to discover privileged materials,” Senate Chief Counsel for Employment Jean Manning wrote in a November 2003 motion. “Macon answered a number of questions regarding his relationship with defense counsel but drew the line when it appeared that Farley was asking about the substance of Macon’s communications with defense counsel.”

In a motion filed to compel Macon’s testimony, Banks’ attorneys also sought to prohibit the employment counsel from representing rank-and-file Sergeant-at-Arms employees.

In his ruling, Facciola did not address the attorney-client relationship between the Senate office and its employees, stating: “I have purposefully not discussed the significance of government counsel’s representing the witness in this context because I deem it irrelevant.”

The Senate attorneys must permit the depositions, Facciola wrote, but the plaintiff’s counsel may not ask questions that would violate “attorney-client or work product privileges.”

“It must be recalled that, generally speaking, no one owns a witness and each party to a lawsuit has an equal right to interview the witnesses who are not parties,” Facciola wrote.

Farley praised Facciola’s decision prompting the depositions to continue.

“It was a big issue with the plaintiff,” said Farley. “We [the plaintiff] always have the burden of proof … so the more light we can shed on the matter, the better for us.”

The Office of the Senate Chief Counsel for Employment did not return a telephone call seeking comment. Senate attorneys have sought to have the lawsuits dismissed.

The discovery phase for the lawsuit is scheduled to close Feb. 24, at which time federal Judge Henry Kennedy could issue a summary judgment. A pre-trial hearing has been scheduled for June.