Judge hears arguments on Dover Chemical's request for sanctions against city of Dover
NEW PHILADELPHIA ‒ Attorneys for Dover Chemical Corp. and the city of Dover sparred in court Monday over a motion filed by the corporation for sanctions against the city in the ongoing legal dispute over services provided by Dover Light & Power to the manufacturer.
The motion centers around allegation by Dover Chemical that the city failed to produce a key document 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 document in question is a letter that O'Meara sent to city council in 2020 in which he said that employees of the Electric Field Division had been maintaining and upgrading the lines and equipment inside the Dover Chemical 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.
Public records request
The letter was provided to The Times-Reporter after the newspaper made a public records request, but Dover Chemical claims that the city did not provide the letter to the company when it made a records request six days later.
"It's our position that this is the seminal document of the case in terms of understanding the city's position and the numbers that have been made bandied about in the press," attorney Timothy Rudd, representing Dover Chemical, told Common Pleas Judge Elizabeth Lehigh Thomakos.
The company received the letter on June 29, the day of O'Meara's deposition and a day after a deposition by Dover Mayor Shane Gunnoe. Dover Chemical wants to reopen Gunnoe's deposition to question him about the letter.
Attorney Dolores Garcia countered that the city provided the letter to Dover Chemical within 24 hours after the company requested a copy. She said Dover Chemical did not specifically request the document in 2020 when it requested documents in 15 broad categories.
"The fact that it happened in this timeframe around the depositions was not the fault of the city. It was, as we contend, a lack of diligence on the part of Dover Chemical," Garcia said.
Deposition 'went nowhere'
Rudd also alleged that O'Meara's deposition "went nowhere." He said that the law director spent 10 minutes reading the letter before he acknowledged having seen it before. O'Meara also recorded the deposition with his phone, leaving it to record while he was out of the courtroom. The attorney for Dover Chemical ended the deposition after O'Meara acknowledged that the phone was his.
Garcia countered that the city was willing to continue the deposition.
"The failure that is referred to in the pleadings was only the failure on the part of Dover Chemical's counsel, who was very emotional and upset about the discovery of the recording and chose to end the deposition based on his emotional state," she said.
Thomakos interrupted her. "I think any of us as lawyers would be emotional if we found out we were being surreptitiously recorded when speaking with our clients," the judge said.
Garcia said she didn't think there was any surreptitious recording because O'Meara's phone was out and visible to the court reporter. Since there was no Dover Chemical representative present at the deposition, there was no attorney-client discussion going on when O'Meara was out of the courtroom.
"I take no position as counsel for the city on the wisdom of Director O'Meara's actions," she added.
What the company wants
Dover Chemical is asking Thomakos to order the city to pay for the cost of reopening Gunnoe's deposition and for O'Meara's deposition on June 29. The company did not provide a cost estimate.
The judge said she will be issuing a ruling in the near future.
Reach Jon at 330-364-8415 or at jon.baker@timesreporter.com.
This article originally appeared on The Times-Reporter: Judge hears arguments on request for sanctions in Dover Chemical suit
