A Buchanan Ingersoll & Rooney lawyer who represented defunct Adelphia Communications for years has lost a battle to quash a subpoena he was served by Rigas family members who previously owned Adelphia.

But a federal judge has placed restrictions on the deposition the Rigases are seeking.

Attorney Carl E. Rothenberger argued that sitting for a deposition would be burdensome and is an attempt to get discovery two jailed Rigases have not yet acquired in their federal habeas petition.

The subpoena of Rothenberger arose in the case of Rigas v. Deloitte & Touche, which is filed in the Southern District of New York under the umbrella of In re Adelphia Communications Securities and Derivative Litigation. The subpoena was issued by James Rigas, John Rigas and a number of their family-owned entities in their case against Deloitte relating to how the accounting firm advised the Rigases over a 20-year period.

Adelphia founder John Rigas and his son, Timothy Rigas, are currently in jail after being convicted of securities fraud in 2004. Adelphia entered bankruptcy in 2002. A trustee for the company then attempted to recover damages from a number of entities over the years, including its outside counsel, Buchanan Ingersoll. The law firm settled that litigation for a total of $60 million between the trust and Adelphia investors, according to a statement from the trust and media reports at the time.

Rothenberger filed Feb. 21 a motion to quash the subpoena for a deposition today in Rigas v. Deloitte, noting he sat for 12 days of depositions on similar subjects in previous, related litigation involving nearly all of the same parties. Related suits had been filed in the Philadelphia Court of Common Pleas and the Southern District of New York as well as the criminal proceedings in the Southern District, he said.

Rothenberger argued he already testified at depositions for 12 days in 2005 and 2006 as part of the actions brought in Philadelphia. He said the current case is a “continuation” of those cases. 
”This request comes more than a decade after the relevant events, more than seven years after Mr. Rothenberger’s prior testimony, and clearly presents an ‘undue burden’ against which he should be protected,” argued Rothenberger’s attorney, J. Alexander Hershey of Clark Hill Thorp Reed, in the motion.

Rothenberger argued the topics the Rigases are looking to cover in a new deposition were covered in prior ones, which involved the same counsel who are currently representing the Rigases. The Rigases are being represented by Dilworth Paxson Chairman Lawrence G. McMichael and partner Christie Callahan Comerford.

“To claim now that they left a subject matter untouched does a disservice to the Rigas counsel’s own diligence and dishonors the effort of Mr. Rothenberger and Buchanan Ingersoll to be cooperative throughout the discovery process,” Rothenberger said in his motion.

Rothenberger further argued the jailed Rigases have filed a habeas petition in which they allege the government, in an alleged Brady violation, failed to produce exculpatory information contained in the government’s notes from a Feb. 20, 2004, interview with Rothenberger.

“The Rigases have requested leave to take discovery in their habeas case, but have not yet received it from the court in that proceeding,” Rothenberger said. “Nonetheless, their counsel has plainly indicated their intention to depose Mr. Rothenberger concerning the government’s notes at any deposition taken under the subpoena served in these separate proceedings. This court should not permit such an end-run of the habeas petition process.”

While Rothenberger argued all of the parties in the current action were party to or a successor in interest to a party in a prior action in which Rothenberger was deposed, the Rigases didn’t appear to see it that way.

“The short of it is, this is a different case. … The facts are overlapping, of course. We don’t deny that, but there are nuances and differences and different legal theories … than there were in the past,” McMichael told The Legal last week.

In an order issued Friday afternoon, U.S. District Judge Cathy Bissoon of the Western District of Pennsylvania said Rothenberger didn’t offer sufficient evidence to quash the subpoena, but she said he provided “compelling evidence” that he previously testified on subjects related to the pending claims. She limited the deposition of Rothenberger to subjects not covered in the 2005 and 2006 depositions.

Bissoon further ruled Rothenberger’s deposition “shall not be used as a vehicle to conduct discovery in the above-noted habeas proceeding.” She said the plaintiffs were precluded from questioning Rothenberger about his 2004 interview with the U.S. Attorney’s Office.

McMichael said there are four other subpoenas that are being challenged in the case—two in the Middle District of Pennsylvania and two in the Northern District of Georgia. Those four witnesses, according to the Rigases’ response in opposition to Rothenberger’s motion to quash, are invoking the Fifth Amendment. The Rigases said that makes Rothenberger’s testimony all the more important.

In the Rigases’ response, they argued Rothenberger is one of “just 13 witnesses” they seek to depose in the Deloitte matter. And as “outside general counsel” to Adelphia, Rothenberger was witness to the entire 20-year history between the Rigases and Deloitte, the Rigases said.

“Over the years, the Deloitte employees who worked on the Adelphia and Rigas engagements have changed, but Carl Rothenberger has been a constant throughout,” the Rigases said. “Simply put, there is no third-party witness with more knowledge of Adelphia and the Rigases and their relationship over the years with Deloitte than Mr. Rothenberger. His testimony regarding this relationship is critical to plaintiffs’ claims against Deloitte for negligence.”
As to the issue of the deposition’s relevance to the habeas petition, the Rigases argued the U.S. Attorney’s Office for the Southern District of New York has not objected to Rothenberger’s deposition in either the case against Deloitte or the habeas petition. They argued Rothenberger has no standing to object on the U.S. Attorney’s behalf.

Calls to Hershey for comment weren’t returned.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI. •