BLYTHEWOOD – Efforts to depose a Blythewood attorney are proper and a vital component of an ongoing FOIA lawsuit, according to a March 14 memorandum filed by MPA Strategies, the Town’s former marketing firm.
The filing comes in response to a motion to quash that was filed by Blythewood attorneys who are trying to block attorney Shannon Burnett from testifying. No rulings had been made as of press time.
“Plaintiff cannot make the requisite showing to overcome the skepticism with which courts view attempts to depose an opposing party’s attorney,” the town stated in court papers.
Burnett is part of the Town’s legal team and was involved in negotiating a contract between Blythewood and MPA in early 2021 for marketing services, according to court records.
MPA’s memorandum points out, however, that the Town previously and successfully argued MPA’s former attorney should provide testimony.
“Ironically Defendant [Town] named Plaintiff’s [MPA’s] prior counsel [Joseph Dickey] as a witness,” the memo states. “Meanwhile, Defendant is obstructing discovery efforts in this case by preventing Plaintiff from taking a critical fact witness’s deposition simply because that witness is an attorney.”
MPA filed suit in 2021, alleging the Town violated the S.C. Freedom of Information Act when it failed to turn over documents to the marketing firm it had requested through an FOI request.
Blythewood countersued, claiming eight causes of action, including fraud, civil conspiracy, negligence/gross negligence, and another misconduct.
MPA referred to those counterclaims as “mostly unusual” considering the original suit “was filed as a simple FOIA case,” according to the memo.
“Burnett’s deposition is necessary and will ultimately show that Defendant [Town] was not defrauded. This is the crux of Defendant’s counterclaims,” the memo states.
MPA notes in the March 14 filling that there is precedent for compelling attorneys to testify about non-privileged information, citing Town efforts to list Dickey as a witness.
“Defense has already opposed a motion to strike Dickey as a witness and prevailed,” the MPA memo states.
“The authority provided by the Court regarding Dickey as a fact witness dictates the same conclusion as to Burnett and her role as a fact witness in this case.”
Blythewood attorneys previously argued Burnett should be exempt from testifying because she’s representing the Town in the litigation. They also argue the subpoena for her testimony is overly broad and was improperly served.
MPA served Burnett via email and certified mail. Town attorneys stated in court papers that neither method is a proper method of service. They also note Burnett was out of the country when the subpoenas were first served and that she didn’t view them until March 7, days before the scheduled deposition.
MPA says in its memo that, “This is a mischaracterization of how service occurred,” and that Plaintiff, “offered to re-serve the subpoena and reschedule the deposition, but Town attorneys didn’t respond.”
They also note Burnett was out of the country when the subpoenas were first served and that she didn’t view them until March 7, days before the scheduled deposition.
MPA says in its memo that it offered to re-serve the subpoena and reschedule the deposition, but Town attorneys didn’t respond.
The memo says Burnett’s testimony is needed because the Town designated her as an official agent to negotiate the contract between MPA and the Town.
“Burnett’s testimony is crucial to showing Defendant’s counterclaims are elementally deficient. Specifically, her testimony will show there is no fraud, intentional misrepresentation, or material misstatement here,” the memo continues. “No other witness can testify to this in the way Burnett can, making her testimony critical.”