General Discussion

Baroni, Kelly Seek to Unseal Gibson Dunn Memo to Port Authority

Bridgegate defendants William Baroni Jr. and Bridget Anne Kelly are fighting a bid by the Port Authority of New York and New Jersey to seal a memo containing legal advice the agency received from Gibson, Dunn & Crutcher.

The Port Authority, a nonparty in the prosecution of Baroni and Kelly in connection with the 2013 closure of access lanes to the George Washington Bridge, asked the judge in the Bridgegate case Dec. 3 to place the legal memo and a related email under a protective order. But Baroni and Kelly claimed in a Dec. 22 brief in opposition that the Port Authority's application should not be heard because the agency is a nonparty and never filed a motion to intervene. Baroni and Kelly also said the Gibson Dunn memorandum does not fall under the definition of confidential discovery materials that are covered by the protective order in the case.

The Gibson Dunn memorandum was filed as an exhibit to a discovery brief filed by Baroni on Nov. 11. The entire memorandum and most of the email are redacted in the version filed by Baroni, but he said in the Dec. 22 brief that the redactions were made on a provisional basis and in an "abundance of caution." That left the door open for the government to seek redaction on a permanent basis, but the U.S. Department of Justice said in its own letter to U.S. District Judge Susan Wigenton on Dec. 22 that it "takes no position" on whether the documents should be available to the public. Because the government did not seek to maintain a seal on the document, the terms of the protective order entered in the case dictate that the Gibson Dunn memo should be unsealed, Baroni and Kelly claimed.

The subject of the memo is "New Jersey Assembly Transportation, Public Works and Independent Authorities Committee Investigation—Port Authority Finances," according to the email that was filed along with the memorandum. The email's message was redacted but its two dozen recipients' names remained unobscured, including Baroni, former Port Authority Chairman David Samson and David Wildstein, the former Port Authority director of interstate capital projects.

The Port Authority's motion said the Gibson Dunn memo is unrelated to the allegations in the indictment of Baroni and Kelly, and dates from early 2013, long before the events at issue in the indictment. According to the Port Authority, the Gibson Dunn memo "contains legal advice concerning the Port Authority's response to certain subpoenas issued as part of an investigation by the New Jersey Assembly Transportation, Public Works and Independent Authorities Committee into the Port Authority's finances—an investigation which has nothing whatsoever to do with the allegations contained in the indictment."

But Baroni and Kelly, noting that the Port Authority described the memo as concerning "confidential information about governmental matters affecting the Port Authority and its relationship with various parts of the New Jersey state government," said that relationship is "at the heart of the government's allegations in this case" and therefore is not entitled to remain confidential.

The Port Authority said in its motion to seal that Baroni does not appear to contend that the Gibson Dunn memorandum contains information related to the allegations in the indictment. He apparently seeks to use the memorandum as evidence of an alleged "pattern of behavior" to support his claim that Gibson Dunn has, in this case, on behalf of Gov. Chris Christie, and not the Port Authority, "withheld and/or redacted many documents based on privilege assertions that are clearly outside the bounds of the applicable standards," the agency said.

The Gibson Dunn memo was not produced by the Port Authority, which withheld the item from production to the government on privilege grounds, the agency said in its motion. But the Gibson Dunn memo was produced by the law firm of Wolff & Samson, without the Port Authority's knowledge, the agency said. Wolff & Samson, which had a copy of the memo because it was emailed to founding partner David Samson, changed its name to Chiesa, Shahinian & Giantomasi after Samson retired from the firm in April of this year.

Aside from their claim that the Port Authority's motion to seal is not properly before the court, Baroni and Kelly claimed that the motion should be denied because disclosure of the memorandum was not inadvertent, but rather was the result of gross negligence on the part of the agency. They also claimed that the Port Authority waived work-product privilege associated with the memorandum by exhibiting "conscious disregard of the possibility" that an adversary might obtain the Gibson Dunn memorandum.

Baroni, former deputy executive director of the Port Authority, and Kelly, former deputy chief of staff to Christie, were each charged in April with conspiracy to misapply and misapplication of Port Authority property, as well as counts for conspiracy to commit wire fraud, wire fraud, conspiracy against civil rights and deprivation of civil rights. The charges stem from the abrupt closure of local access lanes to the George Washington Bridge in September 2013.

Michael Baldassare, of Baldassare & Mara in Newark, who filed the brief in opposition on behalf of Baroni and Kelly, did not return a call for comment .

Steve Coleman, a spokesman for the Port Authority, said his agency would not comment on the dispute.