'Evasiveness, gamesmanship and eavesdropping': Dover Chemical seeks sanctions against city

NEW PHILADELPHIA ‒ Dover Chemical Corp. is asking Judge Elizabeth Lehigh Thomakos to sanction the city of Dover, alleging it failed to produce key documents in the company's lawsuit against the city and over Law Director Doug O'Meara's conduct during a recent deposition in the case.

The motion is part of the legal dispute between the city and the company over services provided by Dover Light & Power to the manufacturer. The suit was filed in February 2021.

The company claims the city failed to produce a letter from O'Meara to council members in 2020 in which he said that employees of the Electric Field Division had been maintaining and upgrading the lines and equipment inside the plant, in violation of an ordinance passed by council in 1975.'

He estimated Dover Chemical had received about $2.2 million in free uncompensated services over the space of 44 years. That letter led council to place a surcharge on electricity used by Dover Chemical to recoup the $2.2 million. Dover Chemical's suit seeks to block that surcharge.

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Since filing the suit, the company has switched electric providers to AEP Ohio.

City cited attorney-client privilege in denying request for letter

In its motion, Dover Chemical said it asked for a copy of O'Meara's letter but did not receive it because of attorney-client privilege. However, the same letter was quoted in an article in The T-R on Sept. 10, 2020. Dover Chemical eventually received a copy of the letter on June 30 of this year.

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The company is also alleging that O'Meara derailed Dover Chemical's first attempt to depose him in the case on June 30 "with his evasiveness, gamesmanship and eavesdropping on DCC's counsel."

The motion says that during the deposition, O'Meara spent nine minutes and 16 seconds examining the letter he sent to city council in 2020 before acknowledging that he was familiar with it. The motion also alleges that the law director had been surreptitiously recording the deposition and left his telephone recording in the presence of Dover Chemical's lawyers when he and the city's attorneys left the room.

O'Meara did not respond to a request for comment.

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In seeking sanctions against the city, Dover Chemical says that it will have to depose Mayor Shane Gunnoe a second time because the company's lawyers did not have a copy of the 2020 letter when Gunnoe was deposed on June 29. The company also says that O'Meara's deposition the following day "was nothing less than a waste of everyone's time" because of his behavior. The company is asking Thomakos to order the city to pay Dover Chemical's cost in filing the motion, deposing Gunnoe a second time, the deposition of the law director and "any other sanctions that the court deems just and appropriate."

A hearing on this motion is scheduled for Sept. 18.

Judge has been asked to review documents

On Tuesday, Thomakos heard arguments from lawyers for the two sides over a motion by Dover Chemical requesting the judge to examine all documents that the city has deemed attorney-client privilege to see if they are related to issues brought up in the 2020 letter from the law director.

"The law is crystal clear that the production of a privileged document to a third party waives the privilege as to that document," said Timothy Rudd, attorney for Dover Chemical. "The law is also crystal clear that production of a document withheld on the basis of attorney-client privilege also waives privilege as to any other communications on the same subject matter. So, the question then becomes which other communications, also withheld on the basis of attorney-client privilege, are on the same subject matter."

The city's attorney, Halden R Schwallie, argued that a review of the documents was unnecessary. He said it would be a huge waste of the court's time to examine the documents, which he estimated could amount to thousands of pages.

"We've already remedied any error regarding Mr. O'Meara's emails. Dover Chemical has everything now," he said.

Thomakos took the motion under advisement.

'This case has gone on and on'

The judge also warned the attorneys about any further delays in bringing the case to trial. The case was delayed in 2021 when Thomakos denied a motion by the city of Dover to dismiss the suit. The city appealed to the Fifth District Court of Appeals, which upheld Thomakos' decision. The case is now scheduled for a bench trial on Jan. 24, but on July 11 both sides filed a joint motion asking for a later trial date.

"I know it's a joint motion, and usually that's a no-brainer, except that this case has gone on and on," Thomakos told them.

She said she would like the case to be scheduled for April or May 2024, based on the attorneys' availability.

"Then if I am sitting here dancing with your calendars and suddenly, we're looking at August, I'm not going to be happy about that," she said.

Reach Jon at 330-364-8415 or at jon.baker@timesreporter.com.

This article originally appeared on The Times-Reporter: Dover Chemical files motion seeking sanctions against City of Dover