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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : Plaintiffs, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. : CORPORAL B. KURT PRICE; CORPORAL WAYNE WARREN; and SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-956-GMS

PLAINTIFFS' REPLY BRIEF IN SUPPORT OF THEIR FED.R.CIV.P. 15(b) MOTION TO AMEND THE FIRST AMENDED COMPLAINT TO CONFORM TO THE EVIDENCE PRESENTED AT TRIAL THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Attorneys for Plaintiffs Dated: August 11, 2006 MARTIN D. HAVERLY, ATTORNEY AT LAW MARTIN D. HAVERLY, ESQ. (#3295) Two East Seventh Street, Suite 201 Wilmington, DE 19801 (302) 654-2255 [email protected]

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TABLE OF CONTENTS ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. DEFENDANTS IMPLICITLY CONSENTED TO TRIAL ON THE ISSUE OF PLAINTIFFS' FIRST AMENDMENT PROTECTED SPEECH TO THE MEDIA THROUGH THEIR ATTORNEY AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. B. The Implicit Consent Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Defendants Recognized that the Unpleaded Issue Entered the Case at Trial . . . 1 1. Defendants Were Cross Examined on This Theory During Plaintiffs' Case-in-Chief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Plaintiffs Argued This Theory During Closing Arguments . . . . . . . . . 3 The Jury Interrogatory Encompassed This Speech . . . . . . . . . . . . . . . . 4 Plaintiffs Took Discovery On This Issue . . . . . . . . . . . . . . . . . . . . . . . . 4

2. 3. 4. C. D.

The Evidence Supporting the Issue Was Introduced Without Objection . . . . . . 5 Defendants' Opportunity to Respond Was Not Prejudiced . . . . . . . . . . . . . . . . 6 1. The Prejudice Pointed to By Defendants Also Fails as a Matter of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

E.

Miscellaneous Issues Raised by Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. The Evidence and Argument Was Not Independently Relevant to Any Other Issue in the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Attorney Thomas Neuberger Spoke to the Media on Plaintiffs' Behalf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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TABLE OF AUTHORITIES Cases Page

Arizona v. Fulminante, 499 U.S. 279 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Bedford v. SEPTA, 867 F.Supp. 288 (E.D.Pa. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 BMW of North America v. Gore, 517 U.S. 559 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Deakyne v. Commissioners of Lewes, 416 F.2d 290 (3d Cir. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387 (M.D.Pa. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Douglas v. Owens, 50 F.3d 1226 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,6 Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571 (3d Cir. 2003) . . . . . . . . . . . . . . . . . 7 In re Dinnan, 661 F.2d 426 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Link v. Wabash R. Co., 370 U.S. 626 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Mitchell v. Street, 415 F.Supp.2d 490 (E.D.Pa. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Monsanto Co. v. Aetna Casualty and Surety Co., 593 A.2d 1013 (Del.Super. 1990) . . . . . . . . . . . . . . . 10 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 S.E.C. v. McNulty, 137 F.3d 732 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc) . . . . . . . . . . . 8,10 U.S. v. 7108 West Grand Ave., Chicago, Ill., 15 F.3d 632 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . 9 Willow Inn, Inc. v. Public Service Mutual Ins. Co., 399 F.3d 224 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . 4

Constitutions and Rules U.S. Const., Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Federal Rule of Civil Procedure 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Federal Rule of Civil Procedure 15(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Federal Rule of Evidence 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Model Rule of Professional Conduct 1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Model Rule of Professional Conduct 1.6(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Model Rule of Professional Conduct 1.6 cmt. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Other Sources 6A C. Wright & A. Miller, Federal Practice and Procedure 2d § 1493 (1990) . . . . . . . . . . . . . . . . . . . . . 6

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ARGUMENT I. DEFENDANTS IMPLICITLY CONSENTED TO TRIAL ON THE ISSUE OF PLAINTIFFS' FIRST AMENDMENT PROTECTED SPEECH TO THE MEDIA THROUGH THEIR ATTORNEY AGENT. A. The Implicit Consent Test. In their Answering Brief, defendants have denied what was expected to be an uncontested issue on the First Amendment free speech to the media amendment based on defendants' own testimony. Nonetheless, review of the case law and the facts as actually presented at trial and during discovery reflect that defendants did indeed impliedly consent to trial on this issue. Implied consent occurs when: (1) the parties recognized that the unpleaded issue entered the case at trial; (2) the evidence that supports the unpleaded issue was introduced at trial without objection; and (3) a finding of trial by consent would not prejudice the opposing party's opportunity to respond. Douglas v. Owens, 50 F.3d 1226, 1236 (3d Cir. 1995) B. Defendants Recognized that the Unpleaded Issue Entered the Case at Trial. The Third Circuit has explained that as part of this inquiry, the court should consider whether the moving party "(1) advanced this theory to the jury while presenting his case-in-chief; (2) argued this theory after the evidence was elicited during cross-examination; (3) argued this theory to the jury in his closing arguments; or (4) asked that this alternative theory of liability be included in the special verdict questions." Douglas, 50 F.3d at 1236 n.20 (emphasis added); see id. at 123435. At least three of these disjunctive factors weigh in plaintiffs' favor. 1. Defendants Were Cross Examined on This Theory During Plaintiffs' Case-in-Chief. As part of their case-in-chief, plaintiffs called each defendant to testify. And despite their belated denials, it is clear that defendants themselves opened the door to this issue at

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trial through their own testimony.1 Defendants testified that they were "unhappy," "displeased" and "dismayed" that plaintiffs had spoken to the Auditors and that the media had reported on it. (Chaffinch 1650-53; MacLeish 1759-60, 1762). Defendants even drew the key distinction in this regard - that they had no problems with plaintiffs' speech to the Auditor, but were instead admittedly angry that they spoke to the media. I was not upset that they were talking to the auditors, no. I was upset that it was bringing negative light to the Division of State Police in the media. (Chaffinch 1653). I "was dismayed at how the media ran the story, dismayed that the media ran the story." (MacLeish 1760). Defendants were "upset" and "not happy" that the Division was being shown in a negative light in the press. (MacLeish 1760, 1762; Chaffinch 1653 ). MacLeish testified that he thought plaintiffs were a "real pain in the ass" "at the time" their statements to the Auditors were published in the newspapers. (MacLeish 1760).2 Testimony from retired Major David Baylor also demonstrated that both defendants Chaffinch and MacLeish were "not happy" about plaintiffs' speech to the media, and instead were "frustrated" and "upset" with them. (Baylor 554, 556-58). He also witnessed MacLeish referring to each plaintiff as "a pain in the ass." (Baylor 556).3 Defendants cannot now belatedly run from this testimony. Instead, it is apparent that defendants tried to play fast and loose with the facts at trial. They flatly denied retaliating
1

Although not the determinative factor, the fact that defendants opened the door to the issue is a relevant consideration. See Douglas, 50 F.3d at 1236. The defense claim that they were only angry about the adverse media coverage of plaintiffs' speech and that there is no evidence of their anger over plaintiffs' speech is without merit. (DAB at 10). Such a fine line cannot be drawn on our present record which is discussed above. Without plaintiffs' speech to the media, there simply would have been no media coverage. Additionally, the defense assertion ignores, inter alia, MacLeish's own testimony that "at the time" plaintiffs' speech was published in the media, he thought plaintiffs were a "real pain in the ass" (MacLeish 1760), an attack clearly directed at plaintiffs. As discussed below, defendants never objected to or moved to strike this line of questioning or any of this testimony.
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against plaintiffs because they spoke to the Auditor and then tried to `wiggle' out, claiming that they instead were angry that plaintiffs' statements ended up on the front page of the newspapers via their retained attorney. Unfortunately for defendants, this also constituted protected speech and it also is illegal to retaliate because of it. Plaintiffs followed up on these defense admissions with pointed questioning and capitalized upon them during the presentation of the remainder of their case. Thus, this factor weighs in plaintiffs' favor. 2. Plaintiffs Argued This Theory During Closing Arguments. In light of this compelling evidence elicited from defendants' own mouths, plaintiffs' counsel argued this theory during his closing. They spoke to the auditors on the 12th -- you have their written statements in the book. They are Exhibits 22, 23 and 24 -- addressing the health and safety concerns of themselves, the health and safety concerns of other troopers and the other people using the facility. They gave oral statements. They delivered documents. You heard about that this morning. And then you know that a news story ran after that, after May 12. That is in the record, also. And we know that the fact, their hands had been tied behind their back. But the truth got out because I as their lawyer answered questions -- you can read the story -answered questions after the interviews. And this angered the defendants. You have heard testimony. Defendant Chaffinch, I believe, said he was unhappy with the fact that these news stories ran after May 12. MacLeish I think testified that he was dismayed by the fact that they had spoken to the auditor and the media had reported on it. You saw from the stand, when Kurt testified, he explained, our hands were tied behind our backs, and being able to testify in trial and trying to redeem our honor is liberating. And the fact that some of the story got out while their hands were tied behind their back and they were gagged was liberating for them, also. (Neuberger Closing 2523) (emphasis added).4 Yet once again, defendants did not object to

The defense effort to minimize this damaging portion of the closing argument (DAB at 11) is without merit and simply misrepresents what was actually argued during closing. During an earlier part of the closing, counsel argued that the one day temporal proximity between plaintiffs speech to the

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counsel's argument during closing.5 Thus, this factor also weighs in plaintiffs' favor. 3. The Jury Interrogatory Encompassed This Speech. Additionally, the jury interrogatory already encompassed this speech. The jury was asked to determine whether plaintiffs have "proven that [their] protected activity under the First Amendment (speaking out about the conditions at the DSP indoor firing range) was a substantial or motivating factor in the adverse action taken against [them]?" This interrogatory was in no way limited only to speech up the chain of command and speech to the Auditor. Instead, it was significantly broader in scope and already encompassed their speech to the media. Accordingly, this factor similarly weighs in plaintiffs' favor. 4. Plaintiffs Took Discovery On This Issue. Defendant MacLeish also testified about these issues at his deposition. He testified that based on his conversations with defendant Chaffinch, it was clear that Chaffinch was unhappy with plaintiffs for getting their speech into the media. (MacLeish depo. at 218 - Tab A). MacLeish felt the same way. [T]he manner in which they brought them to our attention through the media and, therefore, the division gets placed in a bad light. That's what's been disappointing. (MacLeish depo. at 218) (emphasis added). I was somewhat dismayed when, being told not to speak to the media, there was a way that - they found a way to get into the media. But according to counsel, it was done through their counsel and it was okay to do it the way they did it, because the statements

Auditors on May 12th and the adverse action of being sent for fitness for duty exams on May 13th was compelling evidence of causation. (Neuberger Closing 2522). Continuing, "[t]he closeness in time here is remarkable. It is the next day. That is insight into their mind." (Id.). The "insight into their mind" statement referred to the temporal proximity, not to the speech to the media. It was certainly not out of timidity that defendants did not object. Instead, review of the transcript reveals that defense counsel had no qualms about improperly objecting during other portions of counsel's closing argument (Ellis - Tr. at 2561), even when clear and unequivocal Supreme Court and Third Circuit precedent explicitly permitted and supported the argument being made. See BMW of North America v. Gore, 517 U.S. 559, 577 (1996) ("a recidivist may be punished more severely than a first offender" and "repeated conduct is more reprehensible than an individual instance of malfeasance" and may be considered in awarding punitive damages); Willow Inn, Inc. v. Public Service Mutual Ins. Co., 399 F.3d 224, 232 (3d Cir. 2005) (noting that "specific instances of similar conduct by the defendant in relation to other parties" not involved in the case may be considered).
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were attributed to them, but were read by their attorneys. (MacLeish depo. at 162) (emphasis added). MacLeish testified that he knew plaintiffs had used their attorney as their agent to circumvent the gag order, he was unhappy about it and he actually tried (but failed) to have them disciplined for doing so. This also weighs in plaintiffs' favor. C. The Evidence Supporting the Issue Was Introduced Without Objection. No where did defense counsel ever object to or move to strike the introduction and eliciting of this testimony from defendants themselves or from Major Baylor. Importantly, the now challenged evidence did not become part of the record as part of an isolated, rambling answer given by each defendant during cross-examination. Instead, review of defendants' own testimony reveals that they were thoroughly examined by plaintiffs on their reaction to plaintiffs' statements ending up on the front pages of the Delaware news media. Defendant Chaffinch was examined over the course of four pages of trial testimony about his reaction to plaintiffs' speech to the media. (See Chaffinch 1650-1653). Yet the record reveals nothing but defense silence with no objections to this entire line of questioning. Thus, they consented to its inclusion. Similarly, defendant MacLeish was next examined and was questioned over the course of at least three pages of trial testimony about this same issue. (See MacLeish 1759-1760, 1762). Again, the record is resoundingly silent on any objection from defendants about the relevance of this evidence.6 Significantly, Major David Baylor also was questioned about his observations of Chaffinch and MacLeish's reaction to plaintiffs' speech in the newspapers. (See Baylor 553554, 556-557). Once again, defendants failed to object to this line of questioning and implicitly consented to its inclusion.

In the same way, defendants also never objected to this line of questioning at MacLeish's deposition. (MacLeish 161-162, 218).

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D. Defendants' Opportunity to Respond Was Not Prejudiced. "Prejudice under the rule means undue difficulty in prosecuting a lawsuit as a result of a change of tactics or theories on the part of the other party." Deakyne v. Commissioners of Lewes, 416 F.2d 290, 300 (3d Cir. 1969). Thus, in this context, prejudice means a party is not afforded an opportunity to prepare to meet the unpleaded issue. Douglas, 50 F.3d at 1236; 6A C. Wright & A. Miller, Federal Practice and Procedure 2d § 1493, pp. 36-40 (1990). Moreover, mere prejudice is insufficient "as a basis for denying an amendment to conform to issues that have been introduced without objection." 6A C. Wright & A. Miller, Federal Practice and Procedure 2d § 1493, pp. 40. Here it was defendants themselves who introduced the evidence of a new claim of free speech retaliation. Plaintiffs then questioned and explored this theory with them. Plaintiffs next argued this theory to the jury. The jury interrogatory included this speech. Defendants had ample opportunity to attack this evidence during their case-in-chief and during their examinations of these same witnesses, but they chose not to do so. As discussed above, defendants were reasonably on notice and had the opportunity to offer evidence in this regard. Accordingly, defendants have suffered no legally cognizable prejudice. 1. The Prejudice Pointed to By Defendants Also Fails As a Matter of Law. Defendants claim that they would have disciplined plaintiffs had they known about the speech to the media issue and that the Pickering disruption balancing would have been affected. (DAB at 8 n.2, 10). Such a claim is erroneous on several levels. First, the Pickering disruption "balancing test comes into play only if the public employer concedes that it dismissed an employee because of the employee's protected speech but contends that it was justified in doing so." San Filippo v. Bongiovanni, 30 F.3d 424, 434 n.11 (3d Cir. 1994) (emphasis added).7 But if the employer denies that it took the adverse action

Accord Dennison v. Pa. Dept. of Corr., 268 F.Supp.2d 387, 399 (M.D.Pa. 2003); Mitchell v. Street, 415 F.Supp.2d 490, 494 n.5 (E.D.Pa. 2005); Bedford v. SEPTA, 867 F.Supp. 288, 295 n.8 (E.D.Pa. 1994).

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against the employee because of his protected speech, the balancing test "has no application." Id.; accord Howard v. Bd. of Educ. of City of East Orange, 90 Fed.Appx. 571, 575 n.6 (3d Cir. 2003). In our case, defendants have always flatly denied that any of their actions against plaintiffs were caused in any way by plaintiff's protected speech.8 Accordingly, as a matter of law, they are barred from asserting the Pickering disruption balancing test and claiming that the actions they took were done in response to plaintiffs' speech. This leads to the second flaw in the defense argument - it confuses the adverse action at issue in this case. Plaintiffs were never formally charged with any wrongdoing by the DSP. Instead, it was sending plaintiffs for unprecedented fitness for duty exams, singling them out for hearing testing, refusing to accommodate them, running them out of the division, reducing Sgt. Foraker's job responsibilities, the public newspaper attacks and all of the other related retaliation that were being challenged in this case as the adverse action at issue. Third, as just discussed, defendants never brought plaintiffs up on any formal charges for speaking to the media through their attorney. The defense assertions that they would have done so are flatly contradicted by MacLeish's own deposition testimony where he testified about this specific issue. MacLeish testified that he and Chaffinch actually wanted to discipline plaintiffs for using their attorneys to speak to the media on their behalf, but their own assigned divisional attorney (Deputy Attorney General Mike Tupman) told them that plaintiffs could not be brought up on charges for using their attorney to circumvent the gag order and speak to the media. I was somewhat dismayed when, being told not to speak to the media, there was a way that - they found a way to get into the media. But according to counsel, it was done through their counsel and it was okay to do it the way they did it, because the statements were attributed to them, but were read by their attorneys. (MacLeish depo. at 162) (emphasis added). Thus, the defense assertion that plaintiffs would

Instead, defendants have always claimed throughout the entire course of this litigation that all `health' related adverse actions were caused by a deep, profound and caring concern for plaintiffs' wellbeing, a claim that the jury obviously rejected as false. (See, e.g. Ellis Opening 68-72; Ellis Closing 2566; MacLeish 1918; MacLeish depo. at 165-166).

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have been brought up on charges is simply wrong, as is the defense claim that defendants "were acting under the assumption that the plaintiffs were observing the departmental restrictions on media contact." (DAB at 10).9 Last, and relatedly, this defense claim also is irrelevant. Because plaintiffs were never disciplined for speaking to the media and because defendants have never asserted that they took any action against plaintiffs because of their speech, any effort to present such evidence would be barred by Fed.R.Evid. 402 as irrelevant. Additionally, efforts to add such an allegation which would so fundamentally alter and contradict the position taken by defendants in this litigation also would demonstrate that defendants are playing fast and loose with the truth and have repeatedly perjured themselves during their testimony, both at trial and in depositions. E. Miscellaneous Issues Raised by Defendants. 1. The Evidence and Argument Was Not Independently Relevant to Any Other Issue In the Case. Defendants also claim that this evidence was relevant to other issues in the case. (DAB at 10-11). But their position also is mistaken. Defendants' testimony regarding their anger and unhappiness about plaintiffs' Auditor statements being read verbatim to the media was not relevant other issues in the case. Initially, plaintiffs only presented two claims for free speech retaliation - internal speech up the chain of command and speech to the State Auditors. Thus, defendants' testimony and the line of questioning in this regard about defendants' reaction to plaintiffs media speech was irrelevant and unnecessary to those two issues. Nonetheless, despite its irrelevance to the two initial claims, it was nevertheless introduced, examined and argued during the course of the case.

These false defense assertions also have independent evidentiary value. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (it is a "general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as affirmative evidence of guilt."); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1069 (3d Cir. 1996) (en banc) ("[r]esort to a pretextual explanation is, like flight from the scene of a crime, evidence indicating consciousness of guilt, which is, of course, evidence of illegal conduct.").

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2. Attorney Thomas Neuberger Spoke to the Media on Plaintiffs' Behalf. The defense claim that there was no record evidence that "plaintiffs directed or authorized their attorney to speak to the media or to read their statements to the media" is entirely unfounded. (DAB at 8). First, the media articles containing attorney Neuberger's statements to the media on behalf of his clients are in the record and they are unchallenged. (PX 28 and 29). As the articles themselves reveal, attorney Neuberger read plaintiffs' written statements to the Auditor "verbatim" to the media. (PX28). Second, defendant MacLeish testified that he certainly understood that attorney Neuberger was speaking on his clients' behalf as a means of circumventing the gag order. I was somewhat dismayed when, being told not to speak to the media, there was a way that - they found a way to get into the media. But according to counsel, it was done through their counsel and it was okay to do it the way they did it, because the statements were attributed to them, but were read by their attorneys. (MacLeish depo. at 162) (emphasis added). Third, attorney Neuberger had no other reason to speak on the subject unless his clients had authorized him to do so. In the same way that defense counsel would not publicly comment to the media about DSP matters involving Chaffinch, MacLeish and the DSP if they were not retained and authorized to do so by their clients, so also plaintiffs' counsel would not publicly comment to the media about DSP matters involving plaintiffs Price, Warren and Foraker if they were not retained and authorized to do so on their clients' behalf. This is a basic principle of agency. 10 For example, the Model Rules of Professional Conduct dictate that "[a] lawyer shall not

See, e.g. U.S. v. 7108 West Grand Ave., Chicago, Ill., 15 F.3d 632, 634 (7th Cir. 1994) ("The clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent's deeds."); S.E.C. v. McNulty, 137 F.3d 732, 739 (2d Cir. 1998) ("Normally, the conduct of an attorney is imputed to his client, for allowing a party to evade the consequences of the acts or omissions of his freely selected agent would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent.") (internal punctuation omitted) (quoting Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962)).

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reveal information relating to the representation of a client unless the client gives informed consent." MRPC 1.6(a); see MRPC 1.6 cmt. 2 ("A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation."). "[A] lawyer shall abide by a client's decisions concerning the objectives of representation and ... shall consult with the client as to the means by which they are to be pursued." MRPC 1.2. A "lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation." Id. No attorney can act on his own whim and talk to the media about information learned in the course of their representation of the clients without first consulting with and obtaining the informed consent from the client. Instead, it is clear that as even defendant MacLeish recognized, attorney Neuberger was speaking on his client's behalf as their agent when he read their Auditor's statements verbatim to the media. CONCLUSION If a trial is a search for the truth,11 then the trial in this case revealed that there were three reasons which played a substantial part in the retaliation against plaintiffs. This included the fact of the speech to the media which plaintiffs delivered through the vehicle of their counsel. The defense would like to avoid the truth of this unpleasant fact because it prevents them from including this case behind the recent legal barrier constructed by the Garcetti decision. But it was the testimony of the two individual defendants themselves which revealed this now unpleasant truth.

And that is what the judicial process is all about. See Arizona v. Fulminante, 499 U.S. 279, 295 (1991) ("The search for truth is indeed central to our system of justice"); In re Dinnan, 661 F.2d 426, 427 (5th Cir. 1981) ("The basis of justice is the truth and our system frowns upon impediments to ascertaining that truth"); Sheridan, 100 F.3d at 1069 ("We routinely expect that a party give honest testimony in a court of law..."); Monsanto Co. v. Aetna Casualty and Surety Co., 593 A.2d 1013, 1022 (Del.Super. 1990) ("In the courts of Delaware, the hallmark of justice under law in civil litigation cannot be expediency marred by deception, but must rather be truth - to accept or require anything less would ... debase the system of justice and belittle all who serve it").

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However, the simple operation of Rule 15 prevents the result of the defense attempt to run from the truth. This was a hard fought 12 day trial which revolved around volumes of causation evidence. That defense was resolved against defendants by the jury. So as a last grasp at straws the defense now seeks to change the focus to Garcetti, in a case where the legal question of protected conduct was never at issue. The defense effort to change the nature of this hard fought case and to ignore the role of the jury in determining the truth is defeated because both defendants injected into the trial the fact that they also were antagonized by the speech of plaintiffs to the media through their attorney. When they injected this additional fact into the case they then fell within the clear parameters of the text of Rule 15 and the case law. Consequently, for the reasons discussed above and in the opening motion, the Court should grant plaintiffs' motion to amend their First Amended Complaint to include a claim for First Amendment protection for their speech to the media because the civil rules seek to determine the truth of all matters. Accordingly, defendants' Garcetti defense fails because this third category of protected conduct does not fall within any barrier created by Garcetti.12

Respectfully Submitted, THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected]

Upon further research and review of the law, plaintiffs withdraw their request to add an equal protection theory.

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MARTIN D. HAVERLY, ESQ. (#3295) MARTIN D. HAVERLY, ATTORNEY AT LAW Two East Seventh Street, Suite 201 Wilmington, DE 19801 (302) 654-2255 [email protected] Dated: August 11, 2006 Attorneys for Plaintiffs

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Tab A

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In the Matter Of:

Price, et al. v. Chaffinch, et al.
C.A. # 04-1207 --------------------------------------------------------------------Transcript of: Thomas F. MacLeish July 19, 2007 -----------------------------------------------------------------------Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: [email protected] Internet: www.wilfet.com

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Price, et al. Thomas F. MacLeish

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Chaffinch, et al. July 19, 2007 Page 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CORPORAL B. KURT PRICE, ) CORPORAL WAYNE WARREN, ) and SERGEANT CHRISTOPHER ) D. FORAKER, ) ) Plaintiffs, ) ) v. ) C.A. No. 04-1207 ) COLONEL L. AARON CHAFFINCH,) individually and in his ) official capacity as ) Superintendent of the ) Delaware State Police; ) LIEUTENANT COLONEL THOMAS ) F. MacLEISH, individually ) and in his official ) capacity as Deputy ) Superintendent of the ) Delaware State Police; ) DAVID B. MITCHELL, in his ) official capacity as the ) Secretary of the Department) of Safety and Homeland ) Security of the State of ) Delaware; and DIVISION OF ) STATE POLICE, DEPARTMENT OF) SAFETY AND HOMELAND ) SECURITY, STATE OF ) DELAWARE, ) ) Defendants. ) Deposition of COLONEL THOMAS F. MacLEISH taken pursuant to notice at the law offices of The Neuberger Firm, P.A., 2 East 7th Street, Suite 302, Wilmington, Delaware, beginning at 9:30 a.m., on Tuesday, July 19, 2005, before Kimberly A. Hurley, Registered Merit Reporter and Notary Public. WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477
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APPEARANCES: STEPHEN J. NEUBERGER, ESQUIRE MARTIN HAVERLY, ESQUIRE THE NEUBERGER FIRM, P.A. 2 East 7th Street - Suite 302 Wilmington, Delaware 19801 for the Plaintiffs EDWARD T. ELLIS, ESQUIRE MONTGOMERY McCRACKEN WALKER & RHOADS, LLP 123 South Broad Street Avenue of the Arts Philadelphia, Pennsylvania 19109 for the Defendants ALSO PRESENT: SERGEANT CHRISTOPHER D. FORAKER CORPORAL B. KURT PRICE ALISON LASSETER -----

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Instead of shaking your head, just say no. Do you understand that? A. Yes, I do. Q. After we're done here today, you will have an opportunity to review the transcript of the deposition to correct any typographical errors that may be made. Do you understand that? A. Yes, I do. Q. If I ask you a question and you don't understand the question, just ask me to rephrase that question. I will be more than happy to do that. Do you understand? A. Yes. Q. Do you understand that I don't want you to guess at any answers? A. Yes. Q. Are you taking any medications or is there anything else that would prevent you from testifying truthfully or remembering accurately today? A. No, I'm not. Q. If you need any breaks, if you need to go to the john, need to stretch your back out, need to take five minutes, let me know and I'll be happy to take a five-minute break. A. Yes.
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COLONEL THOMAS F. MacLEISH, the witness herein, having first been duly sworn on oath, was examined and testified as follows: BY MR. NEUBERGER: Q. Colonel, my name is Steve Neuberger, and I'm an attorney representing Master Corporal Price and Master Corporal Wayne Warren. Are you aware of that? A. Yes. Q. Have you ever testified in court before? A. Yes, I have. Q. Have you ever had your deposition taken before? A. Yes, I have. Q. I'm going to ask you some questions, and the court reporter here is going to type up your answers to those questions. Okay? A. Yes. Q. We have to take turns talking because if we talk at the same time, although the court reporter is very, very good, she can't get everything down. So we have to take turns. A. I understand. Q. You have to verbalize your answers. For example, instead of nodding your head, just say yes.

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Q. You have taken an oath to tell the truth today? A. Yes, I have. Q. Do you understand the significance of that oath? A. Yes, I do. Q. You understand that I'm going to be asking you questions today concerning events arising out of two separate lawsuits? A. Yes. Q. Foraker v. Chaffinch, MacLeish, and the DSP? A. Yes. Q. And then Price, Warren, and Foraker versus Chaffinch, MacLeish, and the DSP? A. Yes. Q. Your current position is Colonel of the Delaware State Police; isn't that right? A. Yes, it is. Q. Is that the highest-ranking position in the Delaware State Police? A. Yes, it is. Q. When were you promoted to colonel? A. May 6 of 2005. Q. What was your position prior to that? A. I was lieutenant colonel. Q. What are the job responsibilities of the

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BY MR. NEUBERGER: Q. Did there come a time when you learned that Sergeant Foraker and corporals Price and Warren had spoken to the Auditor's Office? A. My understanding was they gave statements to the State Auditor's Office. They did not necessarily speak to them. Statements were given through this office. Q. Did you ever talk to Colonel Chaffinch about that? A. Yes. Q. What did you say to Colonel Chaffinch about that? A. I found it odd that when the Auditor's Office met with them, that they would meet at an attorney's office to give their statements and then they wouldn't speak. It would just be written statements handed over by an attorney. That was the crux of what we discussed. Q. What did Colonel Chaffinch say to you about them giving those statements to the State Auditor's Office, if anything? A. I can't recall him saying anything specifically. Q. How about generally? A. Generally, it was the same thing. I just described what I said, the oddity of them giving
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blame for health woes at Smyrna site"? A. Yes. Q. Do you think you ever saw this article? A. Yes, I did. Q. When bad things about the Delaware State Police are in the papers, are they usually brought to your attention when you were either lieutenant colonel or when you are colonel? A. Yes, they are. Q. For example, I think there was a story in The News Journal about a month ago dealing with the trooper holding up a noose that was on the front page of the paper. Was that brought to your attention? A. Yes, it was. Q. On the first page of this exhibit, there's a front-page story of the State News, and that was brought to your attention, also, wasn't it? A. Actually, I think I read this at home. Q. Do you think you read the entire article? A. Yes. Q. Could we turn to the very last page of this exhibit? Are you there? A. I'm there. Q. At the bottom right-hand corner of the page does
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statements at their attorney's office. I guess that was telling us at that point in time that there was -- that there was going to be a lawsuit in the future and we were heading down that road again. Q. Do you recall how soon after the men spoke to the State Auditor's Office that you learned about it? A. I don't recall at this point. MR. NEUBERGER: I'd like to put another exhibit in front of you. We will call this MacLeish Deposition Exhibit 17. (MacLeish Deposition Exhibit No. 17 was marked for identification.) BY MR. NEUBERGER: Q. Colonel, do you have that document in front of you? A. Yes, I do. Q. On page 1 does this appear to be a copy of the front page of the Delaware State News for Friday, May 14th, 2004? A. Yes, it does. Q. Does the top headline say in big bold letters, "Shots traded over range"? A. Yes. Q. Underneath that does it say, "Troopers differ on

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it say "FTU2897"? A. Yes, it does. Q. Does this appear to be an article with the title, "Troopers discuss firing range"? A. Yes. Q. Was it written by Mary Allen? A. Yes. Q. Is it dated May 13th, 2004? A. Yes. Q. Do you think you saw that article? A. May I look at it quickly? Q. Absolutely. A. Yes, I probably read it. Q. You can put that document down. Did you ever talk to Colonel Chaffinch about these two articles? MR. ELLIS: About specifically these two articles or the information that's in them? MR. NEUBERGER: Specifically these two articles. A. I'm sure we did, but I don't recall the specifics of whatever -- of what we discussed. It didn't involve anything that would have resulted in any action we were going to take divisionally.

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Q. Were you happy that the Delaware State Police was back on the front pages of the Delaware State News, for example? A. It was an article of ongoing interest over what was occurring at the range. And happy? I was somewhat dismayed when, being told not to speak to the media, there was a way that -- they found a way to get into the media. But according to counsel, it was done through their counsel and it was okay to do it the way they did it, because the statements were attributed to them, but they were read by their attorneys. Q. Did you ever talk to anyone on the executive staff at the time about these two media articles? A. I'm sure in a general discussion way, yeah, it was discussed the articles being in the paper, but whether it was Major Papili -- I know Eckrich or Hughes or Baylor at that point in time in a general sense were staff officers. You're going to discuss things that are in the paper, positive and negative. Q. Did you ever discuss with the members of the executive staff Sergeant Foraker, Corporal Price, or Corporal Warren during this same time frame? MR. ELLIS: You're talking May 13th, May 14th?
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point in time they were on light-duty status, but what should we do if their hearing is affected and we don't know the extent of that hearing loss? Was it a result of recently being exposed to loud noises? And I use the example of myself working in the flight line when I was in the service. I worked a 3:00-to-11:00 shift and I worked the flight line with planes coming in and going out and different apparatus you used. At night when I would go home, I'd listen to my radio on the way back to the barracks. The next morning when I would get up to go and do something and I'd start the car, the radio would be blaring. Obviously I had to turn it up that loud. I didn't think it was that loud the night before. I use the example that my hearing was deadened. So where did we go? Was it the appropriate course of action to say once it was determined that Price and Warren had suffered a hearing loss to put them back in that same environment not knowing where or the extent of their hearing loss? So I think I discussed that with members of staff and to get their ideas and thoughts about it. Q. Did you ever say to any member of the staff that these guys are a real pain in the rear?
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MR. NEUBERGER: I'll specify the time frame a little better. BY MR. NEUBERGER: Q. From December of 2003 through approximately July of '04, did you ever talk to members of the executive staff about Sergeant Foraker, Corporal Price, or Corporal Warren? A. I'm sure that I did. Q. Do you remember what you said to them? A. Not specifically, no. Q. Do you recall if you said good things about them or if you said bad things about them? A. Maybe a little bit of both. During that period of time hidden in here is when we became -- hidden in here during this time frame is when we found that there may be some hearing problems associated with people at the range, although it wasn't specific, and there was frustration in why weren't people forthcoming in telling us about their hearing-related issues. And that came out I believe at the March 17th meeting. And then we got the specifics on that so we could act on that. I may have discussed with members of the staff the placement of Price and Warren -- because they were going to be placed on light-duty status -- at that

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A. I may have said that as I became frustrated in dealing with getting information from them in this regard. Q. Did you use the word "rear" or would you have used another term such as "ass"? A. I have been known to use that word on occasion. Q. Do you recall which one you used at the time? A. It was probably the latter. Q. So you said these guys are a real pain in the ass? A. You're saying did I say it. I'm saying it's a possibility I said it. I don't recall saying it, but did I feel that way? Yes. But you're the one saying that I said that. I don't recall specifically saying that I said they were a pain in the rear. But could I have said that? Yeah, I possibly could have. Q. You mentioned light duty. I'm going to skip around a little bit and ask you some general questions about that. As lieutenant colonel, and now it's colonel, of the Delaware State Police, do you care about the troopers under your command? A. I absolutely do. Q. Do you only care because you're colonel or

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because you were the lieutenant colonel or have you generally always cared for your subordinates? A. I care for all the men and women in this division. Q. Do you care about their health and safety specifically? A. Yes, I do. Q. Do you care deeply about their health and safety? A. Every night I take them to bed with me. Q. How many times have you called Sergeant Foraker and expressed your concern for his health, safety, and general wellbeing? To limit the time frame from December of '03 forward. A. None. Q. How many times from December of '03 forward have you called Corporal Warren and expressed concern for his health, safety, and general wellbeing? A. Once. Q. When? A. It was in -- I believe it was 911 day in Sussex County. He was down at Sussex County Airport. He was there and I had a discussion with him and I expressed my concern for him.
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keeps going down to them of how they're doing and making sure that they're being taken care of through not just myself but through my majors, my captains, and so forth. Q. You mentioned one time when you talked to Corporal Price at the firing range. A. Yes. Q. Is that the FTU or was that at the National Guard range? A. It was at the National Guard range. Q. I'm going to use some profanity right now. I want you to tell me if that's accurate. I apologize if I offend you. A. Yes. Q. Did you ever state to him that, quote, "I am not going to fuck you," close quote? A. Perhaps, yes, I said that. I don't recall saying it, but if he wrote it down that I said it, then I guess I did. I'm not going to dispute the fact -Q. Would you take Corporal Price's word for it, that if he later testifies that you made that statement, would you disagree with that? A. In the context of that conversation, I was trying to assure him that the reason why he wasn't allowed on the range was for his safety and the
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Q. I'm sorry. This is when? A. It was in -- I believe it was May of '04. I think it was. Whenever Sussex County's open house was, I ran into him there. Q. Have you ever expressed concern for his health, safety, and wellbeing since then to him? A. No, I have not. Q. How many times have you called Corporal Price and expressed concern for his health, safety, and general wellbeing? A. I did one time at the range that was in April of '04, and then subsequent to that I called to inquire that -- I had heard he was upset, so I was calling to inquire what he was upset about, and subsequent to that I received an e-mail from you, but I went ahead and talked to him anyway. During that conversation I asked how he was doing. But when I say it, I have 637 troopers that work for me. I don't call them up every night and ask them how they're doing. During any given time there are different levels -- if they suffered injury, they may have had surgery, I make every effort to try to express my concerns if not personally, then through their commanders, and my expectation is that the information

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division's interest and in the best interest of the division to keep him away from an unknown at that point. We knew he had suffered a hearing loss. Was it attributable to the range? And I was the one that wanted to keep him assigned to the Firearms Training Unit because he's a good instructor. There's classroom instruction and he's also an armor. I thought there would be armor's work to be done there, also. Q. You're indicating you wanted him to work at the Firearms Training Unit but not on the firing line? A. I didn't want him anywhere near that line. That was the information that was passed on to his captain that I felt was relayed down through his chain of command through Sergeant Foraker to him. Q. Did you ever say to Kurt, be it at this meeting or any other meeting, that "Kurt, we just don't know what to do with you because you have been at the range so long"? A. If I had the whole conversation, I may be able to recall it, Mr. Neuberger, but he had been at the range since it opened. He could always go back on the street. He could always go back and work in patrol. Q. Is that a threat -- I'm sorry. Go ahead. A. No. None of that was meant as a threat.

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BY MR. NEUBERGER: Q. How about individually? First Chris Foraker, do you like the fact that he sued you, Chaffinch, and the Delaware State Police? A. Do I like that, the fact that I'm sued? No. Q. Does it make you angry? A. No. It concerns me. Q. Are you displeased about it? A. I would rather not be in that position. Do I relish the thought of being sued? No, I do not. Q. It's a rather unpleasant experience, isn't it? A. It is when you think of four children and putting them through college and everything you work for, your life, and you're personally named, yes. It makes a big difference. Q. Are you pissed off that they sued you? MR. ELLIS: I object to the form of the question. BY MR. NEUBERGER: Q. I'm sorry. That Chris Foraker sued, are you pissed off that Chris Foraker sued you? MR. ELLIS: My objection is that the term "pissed off" is a little imprecise.

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A. No, I'm not. Q. Are you disappointed in him for it? A. I am disappointed in being sued. Q. Fair to say you're unhappy as a result of that? A. I'm disappointed in being sued. Q. How about Corporal Wayne Warren, are you happy that he filed a lawsuit against you and Chaffinch and Delaware State Police? A. No, I am not happy over it. Q. Would it be fair to say you're disappointed in that action? A. I am disappointed in that action. Q. Isn't it true that you weren't happy that as a result of Sergeant Foraker, Corporal Price, and Corporal Warren speaking out about health and safety issues, that negative publicity for the Delaware State Police resulted? MR. ELLIS: I object to the form of the question. Which speaking out are you referring to, any particular speaking out? MR. NEUBERGER: The entire course of speaking out about the health and safety issues at the Delaware State Police that are at issue in this lawsuit. Entire course of conduct.
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BY MR. NEUBERGER: Q. Are you irritated that Chris Foraker sued you? A. I'm disappointed in being sued. Q. Are you equating irritation with disappointment? A. I'm disappointed in being sued. Q. But you're not irritated? A. I'm disappointed in being sued. Q. But are you irritated? A. I'm disappointed in being sued. Q. You're indicating that you're not irritated? A. I'm disappointed in being sued. Q. I think you're expressing you're disappointed in being sued? A. I'm disappointed in being sued. Q. Are you peeved at being sued? A. I'm disappointed at being sued. Q. How about being disgusted? A. I'm disappointed in being sued. Q. Do you like the fact that Kurt Price filed a lawsuit against you and Colonel Chaffinch and the Delaware State Police? A. No, I do not like the fact that I'm being sued personally. Q. Are you angry at him for it?

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A. What was the first part of that question? Q. Isn't it true that you didn't like the negative publicity that resulted from them speaking out about health and safety issues? A. I would have preferred to have them bring those issues to the division and we handle them and handle them in-house and had the opportunity to address them, and we were. As it continued on and on, the dialog pretty much stopped. So I was disappointed in the fact that we didn't get an opportunity to fully work through the issues that they were presenting without going public with them. We were working on them. We were addressing them. Q. Today is July 19th of the year 2005; isn't that right? A. That is correct. Q. Is the FTU fixed and operating? A. No. We're still working at getting it fixed. Q. Has Colonel Chaffinch ever told you that he bears animosity or ill will towards any of the plaintiffs in this lawsuit, meaning Sergeant Foraker, Corporal Price, or Corporal Warren? A. He has never told me he bears animosity toward any one of them.

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Q. Has he ever said he just doesn't like them very much? A. Trying to remember conversations I have had with Colonel Chaffinch and when he's talked about the members of the FTU unit. I know he hasn't been happy with their -- some of their actions, but... Q. What actions was he unhappy with? A. Same type of things we just discussed, the publicity -- the fact that they had issues with what was going on out there. Fine, bring them to our attention, but the manner in which they brought them to our attention through the media and, therefore, the division gets placed in a bad light. That's what's been disappointing. Q. Now, has the colonel ever said anything to you which either indicates or implies that he bears any type of animosity, ill will, or anger towards Corporal Price, Corporal Warren, or Sergeant Foraker? MR. ELLIS: I object to the form of the question. MR. HAVERLY: Based on what? MR. ELLIS: It's the same question he asked a couple minutes ago. He just asked the exact same question.
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Q. So is it your position that his duties as of today, with the exception of the facility change, are the same duties he had as of April 8 of 2002? A. The unit did not fall under me on April the 8th of 2002, but the duties and responsibilities that he currently has are similar to what our firearms instructors are required to do. Q. Isn't it true that his duties now are less than what they once were? A. Not to my knowledge. Q. Isn't it true that you personally have diminished his job duties? A. I don't believe that's true. Q. Isn't it true that you once publicly threw him out of a commanders and section chiefs meeting? A. No. I removed him from a commanders and section chiefs meeting. Publicly did so? I went over and I spoke to him one-on-one. He was sitting in the back of the room. And commanders meetings are lieutenants and captains and section chiefs. And if a section chief of the Firearms Training Unit falls under the academy staff, I had talked to -- I think Lieutenant Davis was present at that meeting. I asked him if he had him there for a specific reason. He said he did not. If one of my
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MR. NEUBERGER: I think I actually used different words. MR. ELLIS: It's awful close. MR. NEUBERGER: Colonel? A. One more time with the question, please. I'm sorry. It's been a long day for all of us. MR. NEUBERGER: Could you read that question back? (The reporter read back as instructed.) THE WITNESS: He's expressed, as I said, disappointment in their actions, and he has never told me he hates them, that he can't stand them. I have never heard him use those words around me. BY MR. NEUBERGER: Q. Has he ever said to you that "I'm going to get them"? A. No. Q. I'd like to change gears a little bit and talk about a different topic. Isn't it true that since Chris Foraker was reinstated to the FTU on December 1st of 2003, that his job duties as NCOIC of the FTU have been changed? A. We have put him in a different facility, but other than that, the basic duties are still there.

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section chiefs or troop commanders is going to have a specific reason to have someone there to address the group, they're allowed to remain in the group. When he was present he was -- and I did ask him to leave because he didn't have anything to present. He had his lieutenant and his direct line of command was present in that room representing the DSP academy. Q. Was Sergeant Foraker a section chief as the NCOIC of the FTU? A. That fell under the academy. So no, he was not in the intent -- with the intention of who was present in that room. Q. So you're indicating that Sergeant Foraker doesn't qualify as a section chief? A. Under the format of who's required to be at that meeting, no, he did not. Q. Was that a commanders and section chiefs meeting? A. Yes, it is section chiefs being those that stand alone. PIO, homicide unit stand alone. They don't report to a commander of one of those units. Q. Are you aware that Sergeant Foraker was previously allowed to attend those meetings prior to April 8 of 2002?

56 (Pages 218 to 221) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

Case 1:04-cv-00956-GMS

Document 231

Filed 08/11/2006

Page 26 of 26

CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on August 11, 2006, I electronically filed this Brief with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Robert Fitzgerald, Esquire Montgomery McCracken Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 Richard M. Donaldson, Esquire Montgomery McCracken Walker & Rhoads, LLP 300 Delaware Avenue, Suite 750 Wilmington, DE 19801

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

FTU / Briefs / P's Motion to Amend - RB.final

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