A judge will rule on whether several entities associated with Inova and Loudoun Healthcare Inc. will have to turn over any communication regarding the proposed Broadlands Regional Medical Center. Judge Thomas D. Horne told lawyers on both sides of the case he would be ruling shortly on the 10 subpoenas served to the county, the Board of Supervisors, communication firms and several law firms.
"I will give you a road map in writing very soon," Horne said. "I know you are anxious to move along in this case."
Horne's ruling is the next step in the discovery of evidence in the court battle between the hospital's representatives, Northern Virginia Community Hospital, and the Board of Supervisors. Northern Virginia Community Hospital filed suit last year challenging the Board of Supervisors' ruling that denied the Comprehensive Plan amendments and rezonings need to begin construction of the Broadlands hospital.
THE PROPOSED hospital is a 164-bed facility located along the west side of Belmont Ridge Road and south of the Dulles Greenway in Broadlands. The location is less than five miles from the existing Inova Loudoun Hospital in Lansdowne. The short distance between the two locations has been the subject of a separate ongoing court battle between Inova and the Hospital Corporation of American (HCA), owner of the proposed Broadlands Regional Medical Center.
In August 2005, the Supervisors voted against HCA's request for a special exception to build the hospital citing concerns about traffic and cohabitation with surrounding neighborhoods. The board's denial caused Northern Virginia Community Hospital to file suit.
In September, parties for both sides argued before Horne whether Supervisors should have sent changes they made to the Comprehensive Plan amendment back through a public hearing before proceeding to a vote. In an Oct. 18 judgment, Horne upheld the Board of Supervisors' decision not to readvertise changes made to the amendments before voting.
LAWYERS FOR the county, County Attorney John R. Roberts and Bruce Blanchard, representing the Board of Supervisors, were in court Wednesday, Dec. 6, along with representatives of each of the subpoenaed parties, to argue motions made for the nullification of each subpoena.
Lawyers representing HCA are asking for any communications that reference HCA or HCA's Reston Hospital. Almost 25,000 pages of public records regarding the denial made by the Board of Supervisors have already been obtained by the hospital through the Freedom of Information Act.
"We are looking at, were there any other communication about the [Comprehensive Plan amendment] between those entities," Mark Looney, a lawyer for hospital, said in November.
Art Schmalz, who was in court representing Inova, Loudoun Healthcare Inc. and Bendure Communications Inc. said he did not even understand what HCA hoped to learn from the information they are requesting.
"They literally want any discussion of political advocacy," he said. "I don't know how it would relate to any of their claims."
Schmalz also said that many of the communications that fall under the original subpoenas are personal communications. The original subpoenas were narrowed to include only that communication that occurred directly with a member of the county or its staff, but Schmalz said HCA should already have copies of those documents.
"They should have all of that from the almost 25,000 pages they got from the county," he said.
REPRESENTATIVES FROM each of the subpoenaed entities argued Wednesday that the breadth of the subpoenas presented a large burden for the smaller companies.
"[We] have no administration staff, no technical staff," Steven Jackson, lawyer for Delta Strategies, a public affairs and communications independent counsel, said. "Every responsive document must be reviewed by council."
Leesburg's Herring Law Firm, the law firm of Douglas L. Fleming and Bendure Communications Inc., also argued that their companies were too small to spend the time collecting the documents requested by HCA.
"We have been dragged unwittingly into the judicial process by an attorney subpoena," William Atwill, the lawyer for Fleming's firm, said. "Narrowing removes a bit of the burden, but does not alleviate the burden."
Lawyers for some of the subpoenaed parties were also concerned about the possibility that the attorney and client privilege would be jeopardized.
"Delta's clients might not seek Delta's services," Jackson said about the possible reaction if the subpoenas were upheld. "This would have a real and dramatic, chilling affect on Delta's ability to petition the government."
Blanchard also offered that companies might have a lot less communications to produce in the future if they knew they would be susceptible to a subpoena.
ROBERT VIETH, lead council for Northern Virginia Community Hospital, said that the scope of the subpoenas had been narrowed, but that he had received no offer from the subpoenaed parties about what they would be willing to produce.
"It is very difficult for me to respond to the burden if they're not going to make a counter offer," he said.
Vieth also said that HCA was not insinuating that any of the parties had been involved with any wrongdoings with regards to the Broadlands Regional Medical Center.
"We are not trying to hold these e-mail participants liable for any of their political advocacy," he said.