# Bolus v. Carnicella, Esquire

> District Court, M.D. Pennsylvania · November 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10409424

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409424

## How later opinions describe it (automated extraction)

- acknowledging that the court has “entertained work product challenges to grand jury subpoenas even though neither [the Federal Rules of Civil Procedure] nor [the Federal Rules of Criminal Procedure] strictly applies in this context.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN BOLUS, et al., No. 4:15-CV-01062

Plaintiffs, (Judge Brann)

v.

AMY CARNICELLA, et al.,

Defendants.

MEMORANDUM OPINION

NOVEMBER 5, 2020
Pending before this Court is Plaintiffs’1 Motion to Compel production of 283
documents currently in Defendants’ possession.2 Defendants assert that the
documents are protected by the work-product and deliberative-process privileges.
The Court concludes that neither privilege applies. Accordingly, Plaintiffs’ motion
to compel is granted.

1 Plaintiffs include: Brian Bolus, Karen Bolus, their son Preston Bolus, and Minuteman Spill
Response, Inc. (collectively “Plaintiffs”).
2 Doc. 120. Defendants in this case are former and current employees and officers in the Office
of the Attorney General of the Commonwealth of Pennsylvania (“OAG”). They include: Amy
Carnicella, David Ellis, Richard Bosco, Christopher Antonucci, Kathleen Kane, and Paul
Zimmerer (collectively “Defendants”). Defendant Carnicella is a former deputy attorney
general in the OAG; Defendants Ellis, Bosco, Antonucci, and Zimmerer are law-enforcement
officers in the OAG. Defendant Kane is the former Attorney General for the Commonwealth
I. BACKGROUND
A. Litigation History

This case arises from a series of alleged constitutional and state law
violations committed by Defendants while they worked in the Office of the
Attorney General for the Commonwealth of Pennsylvania (“OAG”).3 Defendants,
acting as employees of the OAG, conducted a twenty-month investigation of

Plaintiff Brian Bolus and his businesses (collectively referred to as “Minuteman”).4
This investigation culminated in Defendants applying for and receiving warrants to
conduct several searches and seizures of Plaintiffs’ personal property and business

assets.5 These searches were executed on May 29, 2013.6
As a result of these seizures, Plaintiffs’ personal and business bank accounts
were frozen.7 Two grand juries returned indictments against both Plaintiffs Brian
Bolus and Minuteman; Plaintiffs were collectively charged with eighty-three

violations of environmental and other law.8 Plaintiffs’ assets continued to be
frozen throughout the criminal prosecution.9 Consequently, Minuteman was
unable to continue doing business and filed for bankruptcy in April 2014.10 The

3 Id. at ¶¶ 8-16.
4 Doc. 40-13 at 5.
5 Id.
6 Id.
7 Doc. 40 at ¶¶ 74-83.
8 Id. at ¶ 157.
9 Id. at ¶¶ 74-83.
criminal prosecution, however, was mostly unsuccessful; eighty-one of the eighty-
three counts were ultimately nolle prossed or voluntarily dismissed.11

Plaintiffs subsequently commenced this action in May 2015.12 They allege
that the 2013 searches and asset freezes lacked probable cause and thus violated
Plaintiffs’ rights under the Fourth, Fifth, and Fourteenth Amendments.13

Specifically, they claim that Defendants, through the OAG, improperly prosecuted
Plaintiffs for political gain.14 Plaintiffs also raise several state law claims,
including malicious prosecution, false arrest and detainment, assault, battery, and
loss of consortium.15

B. Discovery History
Discovery began in February 2018, when Plaintiffs served their first request
for production.16 In response to this request, Defendants produced most
documents, although they withheld certain materials that they claimed were

protected by various privileges.17 The parties were unable to resolve the matter

11 Id. at ¶ 157.
12 Doc. 1. The Bolus Plaintiffs and Minuteman initially filed separate suits against Defendants.
These actions were consolidated into the present action in May 2017. Doc. 24.
13 Doc. 40.
14 Id. at ¶ 126.
15 Id. These state law claims arise from a search executed by several Defendants on Plaintiffs’
home on May 29, 2013. Id. at ¶¶ 127-132. On May 29, Defendants Bosco, Antonucci, and
Ellis executed a SWAT-type raid on Plaintiffs’ home. Id. Only Karen Bolus and Preston
Bolus, then eight years old, were home at the time. Id. During this search, Defendants
repeatedly aimed assault rifles at Plaintiffs and threatened to shoot their family dog. Id.
16 Doc. 61-1.
17 Doc. 132 at 5. Since discovery began, Defendants have released a total of 650,000 pages from
through informal channels and discussion.18 Plaintiffs now ask the Court to
compel production of 283 documents purportedly protected by the work-product

and deliberative-process privileges.19
C. Disputed Documents
The documents at issue include 205 paper and 78 electronic documents.20
Defendants assert the work-product privilege over 281 documents. All of the

disputed materials relate to Defendants’ and the OAG’s handling of Plaintiffs’
criminal prosecution. Some are handwritten notes, emails, internal memos, and
letters regarding the OAG’s legal strategy; others include draft pleadings, draft

documents, and proffer memos.21
The other disputed documents, allegedly protected by the deliberative-
process privilege, are two emails sent by Deputy Attorney General Linda Hoffa
(“Hoffa”) to former Attorney General Kathleen Kane.22 These emails consist of

Hoffa “providing advice and seeking a decision regarding” two issues: (1) “the
return of various forms of property in the MinuteMan [sic] matter”; and (2) “how
the [OAG] should handle the temporary restraining order filed in the MinuteMan

[sic] matter.”23

18 Doc. 121 at 3-4.
19 Doc. 120.
20 Doc. 121-1; Doc. 121-2.
21 Doc. 121-1; Doc. 121-2.
22 Doc. 121-7.
Plaintiffs maintain that neither the work-product privilege nor the
deliberative-process privilege applies to any of the 283 documents. Plaintiffs

assert that the work-product privilege is inapplicable because the documents fall
outside the scope of Federal Rule of Civil Procedure 26(b)(3). In the alternative,
they contend that they have satisfied both the ordinary and heightened

requirements for compelling disclosure of privileged work product under Rule 26
and Hickman v. Taylor.24 Additionally, they argue that Defendants failed to meet
their burden of establishing that the deliberative-process privilege applies to the
two Hoffa emails.

In response, Defendants claim that Plaintiffs’ motion should be denied
because Plaintiffs have not made an adequate showing of relevance. Defendants
also contest the merits of Plaintiffs’ motion, and argue that all 283 documents are

privileged and thus shielded from discovery.
This motion is now ripe; for the following reasons, Plaintiffs’ motion to
compel is granted.
II. DISCUSSION

In the federal system, discovery is construed liberally.25 The purpose of this
broad construction is to furnish all parties with “mutual knowledge of all the
relevant facts.”26 To this end, Rule 26 provides for discovery of all “nonprivileged

24 329 U.S. 495, 507 (1947).
25 Id.
matter that is relevant to any party’s claim or defense.”27 Matter need not be
admissible at trial to be discoverable; discovery of any relevant material is

permitted so long as the information “appears reasonably calculated to lead to the
discovery of admissible evidence.”28
But discovery is not limitless. Parties may not needlessly prolong discovery,
nor may they discover privileged information.29 And under the work-product

doctrine, Rule 26 explicitly protects from discovery all documents “prepared in
anticipation of litigation.”30 Similarly, federal common law recognizes the
deliberative-process privilege, which shields government documents that were

created in anticipation of an agency decision.31
Importantly, however, neither of these privileges are absolute. Thus, even if
the Court determines that the privileges apply, Plaintiffs have the opportunity to

show that the privileges should be overcome. Though the party asserting a
privilege bears the initial burden of establishing that the privilege applies, the party
seeking discovery ultimately must demonstrate why privileged material should

27 Fed. R. Civ. P. 26(b)(1).
28 Id.
29 Id.
30 Id. at (b)(3).
31 In re Grand Jury, 821 F.2d 946, 959 (3d Cir. 1987) (citing NLRB v. Sears Roebuck & Co., 421
nevertheless be produced.32 And in adjudicating such questions, courts are bound
to construe evidentiary privileges strictly.33

In light of these principles, the Court makes the following determinations.
First, Plaintiffs waived their relevance objection by failing to contest relevance as
required by Rule 33. Second, none of the 281 documents are protected by the

work-product privilege. Though the privilege does protect those documents
drafted by a Defendant (or their agent) during Plaintiffs’ criminal prosecution,
Plaintiffs have sufficiently demonstrated why disclosure is appropriate. Third, and
finally, Plaintiffs have adequately shown why the two Hoffa emails should be

disclosed.
A. Plaintiffs’ Relevance Objection
Defendants waived their relevance objection under Rule 33. Rule 33 affords
parties thirty days to respond or object to written discovery requests.34 The rule

clearly states that “[a]ny ground not stated in a timely objection is waived unless
the court, for good cause, excuses the failure.”35 The Court notes that waiver has
been applied “with particular regularity” to objections based solely on relevance.36

32 In re Grand Jury (OO-2H), 211 F. Supp. 2d 555, 557 (M.D. Pa. 2001) (citing United States v.
Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989)).
33 University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990) (internal citations omitted).
34 Fed. R. Civ. P. 33(b).
35 Id.
Defendants’ relevance objection, which comes nearly two years after
Plaintiffs’ served their first request for production, is untimely. And Defendants

do not attempt to explain why good cause exists to excuse their failure to object
earlier. Accordingly, the Court finds Defendants’ relevance objection waived.37
B. Work Product Privilege
The work-product privilege has two sources. The first is Rule 26(b)(2),

which protects only “documents and tangible things.”38 Rule 26 protects material
when it is “prepared in anticipation of litigation” “by or for another party or its
representative.”39 This protected work product is further divided into two

categories: “ordinary” and “opinion” work product.40 Opinion work product,
which includes any materials containing “mental impressions, conclusions,
opinions, or legal theories,” is entitled to greater protection than ordinary work
product, which encompasses everything else.41

The second source of the work-product privilege is the United States
Supreme Court’s decision in Hickman v Taylor. Hickman has been partially

37 Even if the objection was not waived, Defendants essentially conceded relevance by placing
these documents in their privilege log. Parties need only include materials in a privilege log
that are “otherwise discoverable.” Fed. R. Civ. P. 26(b)(5). By including these documents,
Defendants thus acknowledged that they are “otherwise discoverable” (and thus relevant) but-
for the asserted privileges.
38 Id. at (b)(2).
39 Id.
40 Id.
codified by Rule 26(b)(3),42 but it set forth the principles upon which the work-
product privilege is founded.43 The decision was motivated by the “‘strong public

policy’ underlying the work-product doctrine.”44 And Hickman has been used to
provide greater protection than that afforded under Rule 26 alone.45
Under both Rule 26 and Hickman, opinion work product “is accorded an
almost absolute protection from discovery.”46 This is because, ordinarily, “any

slight factual content that such items may have is generally outweighed by the
adversary system’s interest in maintaining the privacy of an attorney’s thought
processes and in ensuring that each side relies on its own wit in preparing their

respective cases.”47 Nevertheless, neither the Supreme Court nor the United States

42 Notably, Hickman provides greater protection than Rule 26(b)(3) because it protects both
“tangible and intangible” work product. 329 U.S. at 511.
43 See, e.g., Abdell v. City of New York, No. 05-CV-8453, 2006 WL 2664313, at *4-6 (Sept. 14,
2006) (determining whether Hickman provided an independent basis for precluding discovery
above and beyond the protections set forth in Rule 26(b)(3)).
44 Upjohn Co. v. United States, 449 U.S. 383, 398 (1981) (quoting United States v. Nobles, 422
U.S. 225, 236-40 (1975)).
45 Hickman has generally been used to expand protection for opinion, rather than ordinary, work
product. In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d
379, 384 (2d Cir. 2003) (acknowledging that the court has “entertained work product
challenges to grand jury subpoenas even though neither [the Federal Rules of Civil Procedure]
nor [the Federal Rules of Criminal Procedure] strictly applies in this context.”); e.g., Upjohn,
449 U.S. at 401-02 (“As Rule 26 and Hickman make clear, [opinion] work product cannot be
disclosed simply on a showing of substantial need and inability to obtain the equivalent without
undue hardship.”); Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985), cert. denied, 474 U.S. 903
(1985) (extending work-product protection to the “selection and compilation of documents” in
preparation for pretrial discovery).
46 Sporck, 759 F.2d at 316 (citing Upjohn, 449 U.S. at 401).
Court of Appeals for the Third Circuit has foreclosed the possibility that opinion
work product might be disclosed under certain circumstances.48

Plaintiffs raise three arguments in support of their motion. They claim that:
(1) Defendants were not a “party” to the criminal proceedings brought against
Plaintiffs, thus rendering the work product inapplicable to the disputed documents

under Rule 26; (2) even if the work-product privilege applied, Plaintiffs have a
made a showing sufficient to overcome it under Rule 26(b)(3); and (3) Plaintiffs
have made a satisfactory showing that any opinion work product should be
disclosed. Defendants refute each of these contentions.

The Court concludes that all of the 281 documents allegedly protected by the
work-product privilege must be produced. The Court bases this conclusion on two
grounds. First, as to all documents created in anticipation of the criminal

prosecution, the work-product privilege applies only to those documents created by
a party to the present litigation.49 Second, Plaintiffs have established that they are
entitled to discovery of both ordinary and opinion work product. Thus, as it relates
to these 281 documents, Plaintiffs’ motion to compel is granted.

48 Upjohn, 449 U.S. at 401; In re Cendant Corp. Securities Litigation, 343 F.3d 658, 663-64 (3d
Cir. 2003) (“[O]pinion work product protection is not absolute, but requires a heightened
showing of extraordinary circumstances.”) (quoting Sporck, 759 F.2d at 316).
49 Though Defendants argue that at least nine documents were created in anticipation of this
litigation, they have failed to meet their burden of establishing that the privilege applies.
Defendants provide little explanation, beyond pointing out that several documents were created
after this litigation commenced, as to why these documents are protected. Both parties are
aware that the subject matter of the current suit is intertwined with Plaintiffs’ criminal
prosecution. And Defendants must provide more than time stamps to establish that the work-
1. Applicability of the Work-Product Privilege
The work-product privilege applies only to those documents drafted by a

party to the present case.50 As discussed above, the work-product privilege of Rule
26 protects only those documents created “by” or “for” a “party or its
representative.”51 The Supreme Court has interpreted this language to extend
protection to “materials prepared for any litigation or trial so long as they were

prepared by or for a party to the subsequent litigation.”52 Thus, the work-product
privilege is not limited to a particular lawsuit. And a party may assert the privilege
over documents she created as an attorney in past litigation, if those documents are

being used against her in the present action.53
The question in this case is whether, and to what extent, documents created
by the OAG in Plaintiffs’ criminal prosecution are protected by the work-product
privilege in subsequent civil litigation against OAG employees. In accord with

other courts that have addressed this question, the Court concludes that only those
documents personally drafted by Defendants (or their agents) are protected by the
work-product privilege.

50 The Court finds that all of the documents constitute work product under the two-part test,
commonly used in the Third Circuit, for determining whether documents are protected by the
work-product doctrine. Louisiana Mun. Police Employees Retirement System v. Sealed Air
Corp., 253 F.R.D. 300, 306 (D.N.J. 2008). This is so because the documents were created in
“reasonable anticipation” of the criminal prosecution, and were prepared “primarily for the
purpose of litigation.” Id.
51 Fed. R. Civ. P. 26(b)(3).
52 F.T.C. v. Grolier Inc., 462 U.S. 19, 25 (1983) (internal citations omitted).
In Doubleday v. Ruh, the United States District Court for the Eastern District
of California dealt with a similar question. There, after being unsuccessfully

prosecuted by the Sacramento County District Attorney’s Office, the plaintiff filed
a civil-rights action against the county and several individual state officers.54
Seeking the prosecutorial file created during the criminal prosecution, the plaintiff

served subpoenas on three deputy district attorneys who had worked on the
prosecution but were not defendants in the action.55 The attorneys asserted the
work-product privilege, claiming that these documents were not discoverable
because they were created in anticipation of the criminal prosecution. The issue

before the Eastern District of California was whether the privilege applied under
those circumstances. More specifically, the court addressed whether the
prosecutorial file was created “by” or “for” a party to the civil litigation within the

meaning of Rule 26.
The Eastern District of California found the work-product privilege
inapplicable.56 The court held that the prosecutorial file had not been created for
either the County of Sacramento or the individual district attorneys.57 Rather, the

court determined that only “the People of the State of California” can be
considered a plaintiff in a criminal case.58 The Doubleday court reasoned that

54 149 F.R.D. 601, 604-05 (E.D. Cal. 1993).
55 Id.
56 Id. at 605.
57 Id. at 605-06.
neither the County of Sacramento nor the District Attorney had complete and
exclusive authority to initiate a prosecution.59 Thus, neither could be considered a

true “party” to a criminal prosecution, and neither could prevent disclosure as a
party whom the file was made “for.”60
Doubleday ultimately did not address whether the work-product privilege

would have applied if the attorneys had been parties to the civil action, and
whether the prosecutorial file would have thus constituted a document created by a
party to the civil litigation.61 However, several other courts have taken up this
question. They have all concluded that the work-product privilege does apply to

documents created in anticipation of a criminal prosecution where the person who
drafted them is a party in subsequent civil litigation.
For example, in Sommer v. United States, the United States District Court of

the Southern District of California distinguished Doubleday, holding that materials
created by a party in civil litigation could assert the work-product privilege over
documents that they created in a previous criminal prosecution.62 The United
States District Courts for the District of Arizona and the District of Central

59 Id.
60 Id.
61 Id. Because the subpoenaed attorneys were not formal parties to the action, the court found
they lacked authority to claim the work-product privilege. Id.
California held similarly in Merritt v. Arizona,63 and Colonies Partners v. County
of San Bernadino, respectively.64

Though none of these decisions are controlling, the Court finds them
persuasive. Accordingly, the Court makes two determinations. First, the disputed
documents were not created “for” a party in the present litigation because neither

the OAG nor its employees were a party to the criminal prosecution against
Plaintiffs.65 Second, the work-product privilege applies to any documents created
in anticipation of the criminal prosecution by a party to the present case.66 A
literal reading of Rule 26(b)(3) reveals no exception to this rule, and the Court sees

no reason to depart from its text.67
As a result, only those documents drafted by a named Defendant (or their
agent) are protected by the work-product privilege. All other documents must be

disclosed to Plaintiffs. The Court next analyzes whether Plaintiffs have

63 No. 17-cv-4540, 2018 WL 3729757, at *3 (D. Ariz. August 8, 2018).
64 No. 5:18-cv-0420, 2019 WL 2895187, at *9-10 (C.D. Cal. May 1, 2019).
65 Though the same holding in Doubleday was partially premised on a decision by the Supreme
Court of California which addressed this question, the Court believes the reasoning underlying
that determination is persuasive here. 149 F.R.D. at 605-06. See also Carter v. City of
Philadelphia, No. 97-cv-4499, 2000 WL 632988 (E.D. Pa. May 5, 2000) (holding the same).
66 The Court immediately notes that several of the disputed documents were drafted by Defendant
Carnicella. These documents are clearly protected by the work product privilege. However,
the Court notes that some materials may have been drafted by an “agent of” a named
Defendant. The Court has full faith that the parties will be able to resolve any disputes
regarding the authorship of any documents not obviously covered by the privilege.
67 See Grolier, 462 U.S. at 25. Plaintiffs rely heavily on Carter v. City of Philadelphia for the
proposition that the work-product privilege is entirely inapplicable. 2000 WL 632988. But
Carter did not address whether the privilege applies when a party in civil litigation has
previously drafted documents in a criminal prosecution. Id. at *1. Because Carter did not
sufficiently established that those materials protected by the work-product
privilege should be disclosed.

2. Overcoming the Work-Product Privilege
Plaintiffs have shown that they are entitled to discover all documents
protected by the work-product privilege, whether they constitute ordinary or
opinion work product. The work-product privilege provides “two tiers of

protection.”68 First, “work prepared in anticipation of litigation by an attorney or
his agent,” known as ordinary work product, is “discoverable only upon a showing
of need and hardship.”69 And second, work product containing the “mental

impressions, conclusions, opinions, or legal theories of an attorney or other
representative,” known as “core” or “opinion” work product, is “generally
accorded near absolute protection from discovery” and requires a “heightened
showing of extraordinary circumstances.”70

Because certain documents in Defendants’ privilege log appear to contain
“mental impressions, conclusions, opinions, or legal theories,” the Court analyzes
whether disclosure is appropriate under both standards.

68 Cottillion v. United Refining Co., 279 F.R.D. 290, 302 (W.D. Pa. 2011) (quoting In re Cendant
Sec. Litig., 343 F.3d at 663-64).
69 Id. (quoting In re Cendant Sec. Litig., 343 F.3d at 663-64).
a. Ordinary Work Product
Plaintiffs have shown that they are entitled to discover any ordinary work

product. To compel discovery of ordinary work product, a party must show that
the materials are otherwise discoverable and that the party: (1) has a “substantial
need for the materials”; and (2) “cannot, without undue hardship, obtain their
substantial equivalent by other means.”71

Plaintiffs have satisfied both elements. First, they have a substantial need
for these materials because they are directly relevant to the present litigation.
Plaintiffs’ claims turn entirely on whether Defendants wrongfully subjected them

to prosecution. To succeed, Plaintiffs will need to establish that Defendants lacked
probable cause or acted maliciously. This will likely require showing that
Defendants knew their prosecution of Plaintiffs was wrongful or, at the very least,
that it lacked justification. And documents that might reveal “activity prior to and

after” receiving search warrants or draft documents of grand jury presentments are
especially pertinent to Plaintiffs’ claims.
Second, Plaintiffs will not be able to obtain equivalent information by other

means. Plaintiffs would not likely be able to discover this information by
deposition; though Rule 26 only protects “documents and tangible things,”
Defendants have indicated they might object to any questions regarding

information contained in privileged documents.72 Further, Plaintiffs have
adequately demonstrated that this information is only available in the documents

currently in Defendants’ possession. Consequently, Plaintiffs have satisfied their
burden on Rule 26, and their motion to compel production of all ordinary work
product is granted.

3. Opinion Work Product
Plaintiffs have also shown that they are entitled to discover any opinion
work product. In Upjohn, the Supreme Court declined to determine whether
opinion work product is absolutely protected; though the Court clarified that

opinion work product cannot be disclosed under the “need and hardship” test of
Rule 26, it declined to provide a specific standard under which courts might
analyze the question.73 The Court did suggest, however, that “a far stronger
showing of necessity and unavailability” would be required.74

The Third Circuit has not directly addressed the issue, although it has held
that protection of opinion work product is “not absolute, but requires a heightened
showing of extraordinary circumstances.”75 In the absence of controlling

72 See Doc. 132 at 35 (citing Hall v. Clifton Precision, a Div. of Litton Systems, Inc., 150 F.R.D.
525, 529 (E.D. Pa. 1993)).
73 449 U.S. at 401-02.
74 Id.
75 In re Cendant Corp. Securities Litig., 343 F.3d at 664 (citing Sporck, 759 F.2d at 316). The
circuits are currently split on whether opinion work product is afforded absolute or qualified
protection. The Third Circuit’s approach is consistent with those of the Fifth, Sixth, Ninth,
and D.C. Circuits, as well as a number of district courts, who have also held that opinion work
product protection is not absolute. Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573
precedent, the Court looks to the Ninth Circuit’s test, formulated in Holmgren v.
State Farm Mutual Auto Insurance, which squarely answers this question.76

There, the Ninth Circuit held that opinion work product was discoverable
where: (1) “mental impressions are at issue” in a case; and (2) “the need for the
material is compelling.”77 In that case, the Holmgren court found that both

elements were satisfied where the plaintiff raised raised a bad-faith insurance claim
that put the “strategy, mental impressions and opinion of [the insurer’s] agents”
directly at issue.78
The Court finds the Ninth Circuit’s test appropriate here, and concludes that

Plaintiffs have satisfied both elements. As discussed above, Defendants’ mental
impressions and legal strategy are directly at issue in this case. And Plaintiffs have
established a compelling need for this information because they will otherwise be

unable to access it. Because Defendants’ legal strategies in the criminal
prosecution form the heart of Plaintiffs’ case, the Court finds that Plaintiffs have

1983); In re Sealed Case, 976 F.2d 793, 809-10 (D.C. Cir. 1982); In re Grand Jury Subpoena
Dated Nov. 8, 1979, 622 F.2d 933, 935-36 (6th Cir. 1980); Andrews v. St. Paul Re-Ins. Co.
Ltd., No. 00-cv-0283, 2000 WL 1760638 (N.D. Okla. Nov. 29, 2000); AIA Holdings, S.A. v.
Lehman Brothers, Inc., No. 97-cv-4978, 2000 WL 1639417 (S.D.N.Y. Nov. 1, 2000). In
contrast, the Fourth Circuit and other district courts have found the privilege to be absolute.
Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730, 735 (4th Cir. 1974);
Eagle Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D. 474, 478 (N.D. Ill. 2002)
(“[O]pinion work-product is protected even when undue hardship exists and therefore, is for
‘all intents and purposes absolute.’”).
76 976 F.2d.
77 Id. at 577.
78 Id. (quoting Reavis v. Metropolitan Property and Liability Ins. Co., 117 F.R.D. 160, 164 (S.D.
demonstrated a sufficiently compelling need. The Court also finds persuasive
other cases that have addressed substantially similar facts and found the Holmgren

test to be satisfied.79
Additionally, disclosure is not inconsistent with the underlying purposes of
the work-product privilege as set forth in Hickman. These three purposes are: (1)

“preserv[ing] a zone of privacy in which a lawyer can prepare and develop legal
theories and strategies ‘with an eye toward litigation’”80; (2) preventing attorneys
from piggybacking off of the work and research conducted by their opponents81;
and (3) preventing undue interference with litigation.82

Only the first purpose is implicated here. Plaintiffs are not seeking to
piggyback off of Defendants’ work in the criminal prosecution as it has long since
ceased. Neither can Plaintiffs request interfere with inactive litigation. The only

79 Doubleday, 149 F.R.D. at 608; Colonies Partners LP, 2019 WL 2895187, at *12 (“[I]n this
case, mental impressions are at the core of [the Plaintiffs’] claims regarding retaliation and
conspiracy.”); Sommer, 2011 WL 4433631, at *7; see also Schultz v. Talley, 152 F.R.D. 181,
185 (W.D. Missouri* 1993) (permitting discovery of a prosecutorial file in a subsequent civil
action); Carter, 2000 WL 632988, at *2 (citing Doubleday and Schultz as authority for
disclosing opinion work product). C.f. Merrit v. Arizona, 2018 WL 3729757, at *4 (holding
that the plaintiff failed to satisfy the “compelling need” component where he had already
deposed several law-enforcement officers and had “obtained substantial document
production”); Natural-Immunogenics Corp. v. Newport Trial Group, No. 15-02034, 2018 WL
6168035, at *15 (C.D. Cal. June 12, 2018) (holding that simply showing that evidence was a
“critical element” of the plaintiff’s malicious prosecution was not enough to demonstrate
“substantial need”).
80 United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman, 329 U.S. at
511).
81 See Hickman, 329 U.S. at 516 (“Discovery was hardly intended to enable a learned profession
to perform its functions either without wits or on wits borrowed from the adversary.”) (Jackson,
J., concurring).
factor weighing against disclosure is that Plaintiffs’ request might interfere with
the zone of privacy generally afforded to attorneys. But this zone of privacy is

generally intended to remove any fear that an attorney’s work will be used against
their clients.83 And it would be inappropriate for this Court to defer to an
attorney’s zone of privacy where that privacy might be used to shield the attorney

from the consequences of their wrongdoing. Consequently, Plaintiffs’ motion, as it
relates to the 281 documents, is granted.
C. Deliberative-Process Privilege
Finally, Plaintiffs have established that they are entitled to the two Hoffa

emails purportedly covered by the deliberative-process privilege. The deliberative-
process privilege protects “confidential deliberations of law or policymaking,
reflecting opinions, recommendations or advice.”84 “[T]he ultimate purpose of this
long-recognized privilege is to prevent injury to the quality of agency decisions.”85

“It recognizes ‘that were agencies forced to operate in a fishbowl, the frank
exchange of ideas and opinions would cease and the quality of administrative
decisions would consequently suffer.’”86

83 Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991)
(citing Hickman, 329 U.S. at 510-11).
84 Redland Soccer Club, 55 F.3d at 853 (quoting In re Grand Jury, 821 F.2d at 959).
85 Id. (quoting NLRB v. Sears Roebuck & Co., 42 U.S. 132, 151 (1975)).
However, “[t]he privilege, once determined to be applicable, is not
absolute.”87 The Third Circuit has adopted a two-part test for determining whether

documents should be withheld under the deliberative-process privilege. A district
court thus must: (1) determine whether the privilege applies; and if so (2) balance
the parties’ interests.88 The requesting party may “overcome the claim of privilege

by showing a sufficient need for the material in the context of the facts or the
nature of the case . . . or by making a prima facie showing of misconduct.”89
The Third Circuit has further identified five factors that a court should
consider in determining the parties’ balance of interests: “(i) the relevance of the

evidence sought to be protected; (ii) the availability of other evidence; (iii) the
‘seriousness’ of the litigation and the issues involved; (iv) the role of the
government in the litigation; [and] (v) the possibility of future timidity by

government employees who will be forced to recognize that their secrets are
violable.”90
The Court concludes that the deliberative-process privilege applies, but that
the balance of interests weighs in favor of Plaintiffs.91 As discussed above, the

87 Id. (citing First Eastern Corp., 21 F.3d at 468 n. 5).
88 Id.
89 In re Grand Jury, 821 F.2d at 959 (internal citations omitted).
90 Redland Soccer Club, 55 F.3d at 854 (quoting First Eastern Corp., 21 F.3d at 468 n. 5)
(alterations in original).
91 See Bayliss v. New Jersey State Police, 622 Fed. Appx. 182, 185 (3d Cir. 2015)
(nonprecedential) (concluding that review sheets created for the purpose of evaluating a police
officer’s job performance was “clearly pre-decisional and deliberative” and thus protected by
evidence is highly relevant to Plaintiffs’ claims, and it appears unlikely that
Plaintiffs would be able to access similar information by other means. Plaintiffs,

alleging prosecutorial misconduct at one of the highest levels in the State of
Pennsylvania, also raise extremely serious constitutional and civil rights claims.
Moreover, even though disclosure might encourage the “possibility of future

timidity” of state employees, the Court believes that cases like Plaintiffs’ are
sufficiently rare so as to not have a significant deterrent effect. In any event, the
Court finds the risk that government employees might deliberate with less candor
in the future to be significantly outweighed by the importance of allowing

Plaintiffs to fairly adjudicate their claims. As a result, Plaintiffs have shown that
they are entitled to discovery of the two emails between Linda Hoffa and former
Attorney General Kathleen Kane. Their motion as to these two documents is

granted.
III. CONCLUSION
Plaintiffs are entitled to discovery of all 283 documents at issue. Their
motion to compel is thus granted in its entirety.

An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409424. Public record. Not legal advice.