By Dan Christensen, FloridaBulldog.org
By Dan Christensen, FloridaBulldog.org
Broward County Administrator Bertha Henry was supposed to testify Thursday afternoon in a high-profile civil lawsuit that pits Davie recycling businessman Ron Bergeron against trash disposal giant Waste Management. But Henry’s video-taped deposition was abruptly canceled when Waste Management’s lawyers walked out after objecting to the presence of a reporter for Florida Bulldog.
Henry was subpoenaed last month by Bergeron’s Fort Lauderdale attorney, Mitchell Berger. The Waste Management attorneys later indicated they, too, would question Henry, who as Broward’s top executive oversaw garbage disposal contracts and planning for the county’s future role in solid waste.
By law, Broward County has “the responsibility and power for the operation of solid waste disposal facilities to meet the needs of all incorporated and unincorporated areas of the county.” Broward also has the declared goal of achieving 75 percent countywide recycling.
What questions would have been asked of Henry are not known. But because the deposition of a public official about a public contract was to be taken in a public building – County Hall – the public seemed entitled to have a media representative attend.
It was not to be. “The reporter refuses to leave the room,” said Waste Management attorney Brian K. Hole, before he and his colleagues picked up their boxes and briefcases and departed. Hole is a partner in the Fort Lauderdale office of Holland & Knight.
Last August, the court issued an unusual order granting Waste Management’s request to keep confidential transcripts of depositions taken of public officials. The company sought the order during the May 11 deposition of Southwest Ranches City Attorney Keith Poliakoff.
The order by Broward Chief Judge Jack Tuter went so far as to prohibit municipalities and agencies from producing the deposition of a witness in response to a public records request without the judge’s approval.
Last month, attorneys for Florida Bulldog filed a motion that asks the court to unseal numerous records in the case designated confidential, including Poliakoff’s deposition.
The court’s “protective” order is part of the extraordinary secrecy that has accompanied the case of Bergeron Environmental and Recycling LLC v. Waste Management, LGL Recycling, formerly known as Sun Recycling and several current or former LGL executives. The secrecy is the result of Waste Management’s decision to broadly mark its documents confidential – a move that gave the defense access so long as they agreed to keep the documents secret, yet blocked public access to those records.
Many of those records clearly involve matters of great public interest, including information relevant to federal and state antitrust reviews of Waste Management’s $525 million acquisition of the assets of Davie-based Southern Waste Systems in January 2016. SWS was the parent of Sun Recycling, which was 50-50 partners with Bergeron Environmental in Sun Bergeron, a joint venture that in 2013 broke Waste Management’s decades-old monopoly on the county’s waste disposal business and began processing tons of recycled trash for 17 Broward municipalities.
But Waste Management’s SWS purchase, which Ron Bergeron contends was done by his partners at Sun Recycling behind his back, soon restored the trash giant to control of the recycling stream when Sun Bergeron’s contracts expired last year. The demise of Sun Bergeron’s pacts resulted in significantly higher recycling costs for local governments.
Bergeron Environmental contends Waste Management misled Department of Justice antitrust regulators to win approval of its takeover of SWS as part of a conspiracy to ruin its business and steal its customers. It has asked the court to authorize it to transmit to both Justice and the Florida Attorney General’s Office exhibits marked confidential by Waste Management, apparently hoping they might trigger a reconsideration of the antitrust decision.
Bergeron is suing for breach of contract and other damages that LGL attorneys have said in court papers allegedly exceed $126 million.
To make matters more intriguing, Judge Tuter ruled in November that Bergeron’s attorneys had provided sufficient evidence to the court to establish that Waste Management’s efforts to hide certain corporate records are fake because it may have sought legal advice in order to perpetrate a crime or fraud. That ruling, unless rebutted by Waste Management at a hearing before Tuter on Tuesday, means that some documents it wants to keep secret are not protected by the attorney-client privilege.
Lots of lawyers
Thursday’s deposition of Bertha Henry was scheduled to be taken at 1 p.m. at the Office of the County Attorney at County Hall in downtown Fort Lauderdale. Henry appeared, as did Ron Bergeron, his son Lonnie Bergeron and about a dozen lawyers representing Bergeron, Waste Management and the county.
But the presence of this reporter caused concerns for some. Attorney Hole said it would violate Waste Management’s confidentiality privilege.
Bergeron attorney Berger sought to proceed, saying he would not refer to any confidential documents in his questioning of Henry. But in the end, after a couple of private meetings between attorneys for both parties, no acceptable compromise could be agreed to that would allow the deposition to take place.
As things disintegrated, voices were briefly raised and both sides threatened to assess each other the cost of their time for attending the failed deposition. Attorney Hole also said that Florida Bulldog should be assessed those costs.
As the get-together broke up, however, both sides agreed that neither party would be assessed. Hole, however, said again that Florida Bulldog should be liable for those costs.
Another date for Henry’s deposition will be set later.