The counsel for the lawyer at the center of the First Judicial District’s lawsuit over the Philadelphia family court deal said in court papers that he has not been evasive in responding to discovery.
Jeffrey B. Rotwitt’s attorneys, Gerald J. Dugan and Eugene J. Maginnis Jr. of Dugan, Brinkmann, Maginnis and Pace, argued that sanctions over allegedly deficient discovery responses, including the loss of Rotwitt’s defenses, are inappropriate.
“Discovery is not a memory contest nor a means to sanction … a party whose memory is imperfect,” Rotwitt’s counsel said.
Rotwitt’s counsel also argued that it would be an abuse of discretion for out-of-county Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. to award a default judgment on the FJD’s claim that he breached his duty of undivided loyalty.
Richard A. Sprague, Joseph R. Podraza Jr., Charles J. Hardy and Thomas E. Groshens, the FJD’s counsel with Sprague & Sprague, said in their motion for sanctions that Rotwitt should be sanctioned for allegedly violating Wettick’s order from June that Rotwitt submit more complete answers to five interrogatories.
The predevelopment work on the family court facility came under scrutiny in the spring of 2010 in the wake of the revelation that Rotwitt, who had been retained by the court system to search for building locations as a tenant representative, ended up on the other side of the project by striking a fee-sharing deal with Donald Pulver’s Northwest 15th Street Associates, which originally was slated to develop the courthouse. Rotwitt said he disclosed his dual roles.
The FJD said Rotwitt’s alleged violation of that court order by a “repeated and willful refusal to answer questions central to his alleged defenses demand[s] the severe sanction of the entry of a default judgment,” according to court papers.
The FJD also suggested Rotwitt should be sanctioned by being deemed as having admitted “for all purposes in this action, that Rotwitt never disclosed his fee-splitting agreement to Chief Justice [Ronald D.] Castille, to any FJD representative, or to the Ballard Spahr attorneys [who also represented the FJD on the family court deal], or ever obtained the FJD’s informed consent to that agreement,” according to court papers.
The FJD also suggested Rotwitt be sanctioned by being ordered to pay the FJD’s costs and attorney fees in bringing the motion.
Rotwitt’s counsel wrote in their response: “Mr. Rotwitt has provided adequate answers. It is not disregard of the court’s order for a party to fail to remember specifics. Because one party does not like another’s answer is not a reason for the court to award the sanction of … precluding a party from asserting his defenses.”
Rotwitt’s counsel also asked that their client be reimbursed his attorney fees for responding to the FJD’s motion for sanctions.
“It appears that the FJD would like attorney Rotwitt to identify with exacting precision specific discrete meetings or conversations in which he discussed the fee-splitting with Mr. Pulver, and advised the chief justice and other representatives of the FJD of his financial interest in the development of the facility,” Rotwitt’s counsel said.
“The FJD appears to have taken the position that Mr. Rotwitt’s ability to recall specific dates and times of conversations should preclude him from presenting the defense that the disclosure of his interest in the project from mid-2007 was made and that all involved had knowledge of this fact. Not only is this position unreasonable by the plaintiff, but to suggest that Mr. Rotwitt’s responses deserve harsh sanctions is equally unreasonable.”
The interrogatories required Rotwitt to address his discussions with Pulver about splitting fees; the “purported disclosure” of the fee-splitting to Castille, the FJD’s liaison justice and other court leaders; and his communications with Pulver’s attorney David Scolnic of Hangley Aronchick Segal Pudlin & Schiller over Scolnic’s advice that Rotwitt should obtain the FJD’s “express consent” to the fee-splitting.
Rotwitt’s counsel also argued that they still have not received all of Rotwitt’s time records from his former firm, Obermayer Rebmann Maxwell & Hippel, and that they did not receive some time sheets until July 20, which was after the 20-day deadline set after Wettick’s order in June.
While the FJD’s counsel said Rotwitt was being deceptive by his counsel writing that he “would have discussed the fee-sharing arrangement” and there “would have been explicit conversations with Chief Justice Castille in which Rotwitt would have explained that Rotwitt would be receiving the co-development fee with Pulver and the tenant rep fee would be paid to the Obermayer law firm,” Rotwitt’s counsel said that, by the choice of words and verb tense, Rotwitt “meant he did have discussions.”
Wettick has ordered that all outstanding discovery matters be addressed in Pittsburgh on September 4.
Counsel for Rotwitt and the FJD did not respond immediately to requests for comment.