IN THE CIRCUIT COURT OF FAIRFAX COUNTY

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

CITY OF FALLS CHURCH, VIRGINIA, ₎ et nl.,

Plaintiffs,

CASE NO. CL 2012--3411 BOARD OF SUPERVISORS OF

FAlRFAX COUNTY, VIRGINIA, et al., ₎

Defendants.

MOTION FOR PIZOTECTIVE ORDER REGARDING SUBPOENA DUCES TECUM ISSUED TO

MANAGEMENT & FINANCIAL SERVICES GROUP, LLC

COME NOW the Plaintiffs, City of Falls Church, Virginia. el al. ("Plaiutiffs"), by counsel, and pursuant to liule 4:9A of the Rules of the Supreme Court of Virginia, move for a protective order as to doculnents sought in the subpoena d~rces reczrm ("thc Subpoena") issued to Management & Financial Services Group, LLC ("MFSG"), by counsel for the Board of

Supervisors of Fairfax County, Virginia, el al. ("Defendants")

1 . On March 2,2012, Plaintiffs filed this case challellgil~g the authority ofthe Board

of Supervisors of Fairfax County ("the Board") to adopt a specific ordirlance on December 6: 201 1 ("the Ordinance"). Anlong other things, the Ordinance unlawfully purports to establish the Fairfax County Water Authority ("the Water Authority") as the exclusive provider of retail

public water service in Fairfax County and to regulate retail public water rates of other providers in Fairfax County (such as the City of Falls Church)

2. On January 6, 2010, the Fairfax County Circuit Court entered a 17inal Decree in Fairfax County Water Authority v. City of Falls (Ilzurch, Case No. 2008-161 14 (Fairfax County Circuit Court) ("the Water Aulhorrty case"). The Final Decree provided, in relevant part, that

3 . 'The City of Falls Church must cornply with 13.09 of the

City Charter, 1995 Va. Acts ch. 655, in setting water rates that, in the judgment of the City Council, will result in receipts equal to expense

(including any future expense of the water system). In setting its water rates, the City may not include as an "expense" any surplus to be transferred to the general fund in violation of paragraph two of this Decree.

To evaluate and comply with the Court's January 6, 2010, ruling in Foirfax C o u ~ t y Wder Aulhorily v. City ofliulls Church, Case No. 2008-161 14 (Fairfax County Circuit Court) ("the

Water Azithorily case"), in May 2010 the City of 1;alls Church ("the City") hired MFSG to review the finances, rates and charges of the City's water utility. Evaluating the City's water systeln finances and preparing the study was patently litigation work product. Further evidence that MFSG's work on the rate study is protected work product is several letters in the Spring of 201 1 from the lawyer for the Fairfax County Water Authority to the Falls Church City Attorney clainling that the preliminary rate recoinmendations of MFSG violated the Final Dccree in the Water Authority casc

3 . Working with the City and its legal counsel, MFSG prepared a study that

included, rnter crlia. an assessment of the f i ~ ~ a i l c ~ a l inlpacts on thc City's water systeln ofthe Court's January 6,2010, ruling in the Water Azlthority case. During the course of MFSG's preparatioil and review of the study document, MFSG's personnel consulted with and obtained legal advice from counsel for the City. A final version ofthe study, with rccolnlnelldations for

fees and charges, was then submitted by MFSG to the City in May 201 1. A copy of the final version of the study was made available to the public by the City; it is equally available to Defendants as it is to MFSG and the City. Upon information and belief, Defendants already have a copy of it.

4. On or about April 13,2012, counsel for Defendants issued the Subpoena to MFSG requesting ( I ) paper and electronic files and docuineills relating to the City's water system from January 1,2010, to the present; (2) emails and correspondence between MFSG and the City from January 1, 2010, to the present; and (3) all studies and draft studies coriceriliilg the City's water system from January 1,2010, to the present. The Subpoena was nlade returnable on April 30, 2012, at 2:00 p.m.

5 . The document requests in the Subpoena are overly broad and unduly burdensome.

and attempt to acquire docuillents and comrtiunications protected k o m disclosure by the attorney-client privilege and work product doctrine. Defendants are not entitled to protected coinmunicatioils between MFSG and the City's legal counsel.

6 . Second, the documents sought by the Subpoena are irrelevant and iinmaterial to this litigation, and the Subpoena is not reasonably calculated to lead to the discovery of

admissible evidence. The Complaint challenges the authority of the Board to adopt the Ordinance. Nothing in or about MFSG's preparation of the study is reasonably calculated to lead to the discovery of evidence as to whether legal authority exists for the adopted Ordinance. Sitnply put, either legal authority existed or it did not. Nothing that MSFG considered or addressed in its study could provide, or take away, the legal authority of the Board to adopt the Ordinance.

7. Third, the Complaint does not even mention MFSG or its study. 'The study by MFSG, along with tlie corresponding documents and drafts, was the result o f the January 6 , 2010, ruling in the Water Authoriiy case and tlie ensuing privileged comrnu~licatioils and advice o f the City's legal counsel. The Subpoena

is

8. Fourth, this case is noi about the reasonablelless o f the rates or fees charged by the City for its retail water service, or about the reasonableness o f the rates recolnlnended by MSFG in its May 201 1 study. Again, this case

is

Ordinance and whether it can effectively impose the rates o f the Water Authority onto other

retail water providers such as the City. The rates, charges, and other finai~cial recommeildatio~~s in the MFSG study do not address the legal issues i11 this case. Likewise, the protected

cominuilications between MFSG and the City's legal conilsel do not deal with the legal issues in this case.

9. -There are inany purely legal issues raised in the Complaint, such as the lack o f Dillon Rule authority for the Ordinance, the improper notice and advertising o f tlie adoption o f tlie Ordinance, the Ordinance unlawfully having two effective dates, the Ordinance unlawhlly delegating legislative authority, and the effect o f a grandfather provision adopted with the Orditlance. These legal issues for111 the bases o f l'laiiitiffss' Motion for Temporary Ii~,jnnction,

scheduled for hearing on June 18,2012. The Court's decisions on the Motion for Te~nporary

Ii~junctioii and the Couilty's Demurrer, as well as Plaintiffs sun~mary judgi~~e~lt motion to be filed once the palties are at issue, are anticipated to be instructive,

i f

Court, the need for the Subpoena (or other discovery) is dubious and a waste of public taxpayer funds.

WIHEREFOIZE, based on the foregoing grounds, Plaintiffs, by counsel, respectfully request that this Court enter a protective order:

A. Precluding MFSG from turning over documents requested in the Subpoena, especially those protected from disclosure by the attorney-client privilege and work product doctrine;

B. Modifying the Subpoena to disallow any requests for documents protected from disclosure by the attorney-client privilege or the work product doctrine, as well as any other request that the Court deems objectionable;

C. l'recluding the production of any unprotected documents until at least the Court's hearings and ruling on Plaintiffs' Motion for Temporary I~~junction and its anticipated motion for summary judgment 011 purely legal issues (to be filed promptly after the parties are at issue);

D. Awarding Plaintiffs their attorney's fees and costs with respect to this matter; and E. Granting Plaintiffs such other and further relief as this Court may deem just and proper.

Respectlully submitted,

CITY OF FALLS CI-IURCI-I, VIRGINIA, el al.

T. David Stoner (VSB No. 24366) Randall T. Greehan (VSB No. 26326) Michael W.S. Lockaby (VSB No. 74136)

GREEI-IAN, TAVES, PANDAK & STONER, I'LLC 14520 Avion Parkway, Suitc 210

Chantilly, Virginia 201 5 1 Tclephone: 703-378-5770 Fax: 703-378-5771 E-mail: ptaves@gtpslaw.com dstoner@gtpslaw.colnn rgrcehan@gtpslaw.com mlockaby@gtpslaw.com Counsel jor P l ~ a n t f f i

John E. Foster (VSB No. 34376) FALLS CI-IURCI-1 CITY ATTORNEY 300 Park Avenue, #302 East

Falls Church? Virginia 22046 Telephone: 703-248-501 0 Fax: 703-248-5 146

E-mail: jfoster@fallschurchva.gov Counse1,for PlaintQfs

CERTIFICATE OF SERVICE

21*

I hereby certify that on this - day of April 2012, a true copy of the foregoing was (X) mailcd, first-class postage prepaid, ( ) faxed, ( ) hand-delivered, or (X) sent via electronic mail to:

David P. Bobzien (VSB No. 12027) County Attorney

Cynthia L. Tianti (VSB No. 21962) Deputy County Attorney

Cynthia A. Bailey (VSB No. 37822) Assistant County Attorney

12000 Government Center Parkway, Suite 549 Fairfax, Virginia 22035-0064 Telephone: 703-324-2421 Fax: 703-324-2665 E-mail: david.bobzien@fairfaxcounty.gov cynthia.tianti@fairfaxcounty.gov cynthia.bai1ey@fairfaxcou11ty.gov Cozmse1,for L)<fi.nciun/s

I further certify that on this - day of April 2012, courtesy copies of the foregoing was (X) mailed, first-class postage prepaid, ( ) faxed, ( ) hand-delivered. or (X) sent via electronic mail to:

Stuart A. Raphael, Esquire (VSB No. 30380) Arthur E. Schmalz, Esquire (VSB No. 36014) Jill Marie Dennis (VSB No. 43466)

I-Iunlon & Williams

175 1 P i ~ ~ n a c l e Drive, Suite 1700 McLean, Virginia 221 02 Telephone: (703) 714-7400 Fax: (703) 714-7410 E-Mail: s r a p l ~ a e l @ h u ~ ~ t o n . c o ~ ~ i ascl~malz@hunton.co~~~ j n~dennis@l~unton.co~n

Coun~el for Furrfux Counfj~ 1.Vater Azrlhority and

Christopher D. Heagy (VSB No. 79816) Tydings & Rosenberg LLI'

100 East Pratt Street, 26"' Floor Baltimore, Maryland 21202 Telephone: (410) 752-9700 Fax: (410) 727-5460

Email: cl1earzv@,tydines1aw.com