Pace-O-Matic, Inc. v. Eckert, Seamans Cherin & Mellott, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PACE-O-MATIC, INC.,

Plaintiff, CIVIL ACTION NO. 1:20-cv-00292

v. (WILSON, J.)

(SAPORITO, M.J.)

ECKERT SEAMANS CHERIN &

MELLOTT, LLC,

Defendant.

MEMORANDUM

This is a diversity action in which the plaintiff, Pace-O-Matic, Inc.

(“POM”) has brought a state-law breach of fiduciary duty action against

the defendant, Eckert Seamans Cherin & Mellott, LLC (“Eckert”). POM,

a Wyoming corporation with a principal place of business in Georgia, is a

former client of Eckert, a law firm based in Harrisburg, Pennsylvania.

POM claims that Eckert breached its professional duties of loyalty and

confidentiality by undertaking the concurrent representation of another

client in litigation against POM. For relief, POM seeks an award of

compensatory and punitive damages plus declaratory and injunctive

relief against Eckert.

Now before the court are several discovery motions by POM,

Eckert, and two subpoena recipients. (Doc. 44; Doc. 48; Doc. 50; Doc. 52.)

These motions have been fully briefed, and oral argument on these

motions was held on October 20, 2020. Following this hearing, the parties

met and conferred to narrow the scope of documents to be submitted to

the court for an in camera privilege review. In December 2020, the

defendant and the subpoena recipients submitted the agreed-upon

selection of purportedly privileged or protected documents for in camera

review. The motions are now ripe for disposition.

I. BACKGROUND

POM develops, produces, and licenses electronic “skill games” sold

in Pennsylvania and elsewhere. Beginning in 2016, POM engaged Eckert

to represent it in Virginia with respect to litigation over whether those

skill games were illegal gambling devices under Virginia law. That

representation was limited to Virginia, as Eckert represented other

clients with adverse commercial interests in Pennsylvania. One of those

other clients was Greenwood Gaming & Entertainment, Inc. d/b/a Parx

Casino (“Parx”), with which Eckert had a prior existing attorney-client

relationship.

In June 2018, POM filed a lawsuit concerning its skill games in

the Commonwealth Court against the City of Philadelphia and the

Pennsylvania Department of Revenue; that case was assigned Docket No.

418 MD 2018. In July 2018, POM filed a second lawsuit concerning its

skill games in the Commonwealth Court against the Pennsylvania State

Police; that case was assigned Docket No. 503 MD 2018. On November

20, 2019, the Commonwealth Court issued an opinion in Case No. 418

denying a motion for summary disposition by the Pennsylvania

Department of Revenue, which had the effect of placing both actions on

an active litigation schedule.

On December 12, 2019, POM filed a motion for a preliminary

injunction against the Pennsylvania State Police in Case No. 503. POM

sought to enjoin the state police from seizing its skills games from its

customers. On December 18, 2019, Parx and another casino filed an

amicus brief in opposition to POM’s motion for a preliminary injunction.

Parx appeared through counsel of record Kevin McKeon of Hawke

McKeon & Sniscak, LLP (“HMS”) and Adrian King of Ballard Spahr, LLP

(“Ballard”).1 On January 15, 2020, the Commonwealth Court held a

1 King is co-counsel with McKeon in both Commonwealth Court

cases. It is our understanding that he represents the other casino that

joined Parx in filing the amicus brief and, later, the motions to intervene.

hearing on POM’s application for a preliminary injunction. On February

14, 2020, the casinos filed applications to intervene in both of POM’s

Commonwealth Court cases.2

At some point in January 2020, POM learned that Eckert was

involved in representing Parx in connection with the Commonwealth

Court cases and requested that it withdraw from that representation.

Eckert declined and instead withdrew from representing POM in the

Virginia matters. On February 20, 2020, POM filed the complaint in this

action, alleging that Mark Stewart and other attorneys at Eckert had

been behind the litigation efforts of Parx in both Commonwealth Court

cases, despite a conflict of interest. POM claimed that Eckert’s

representation of Parx in the Commonwealth Court cases, directly

adverse to POM, amounted to a breach of its fiduciary duties to POM as

its client—namely, its professional duties of loyalty and confidentiality.

POM has served interrogatories and requests for production

seeking information and documents reflecting communications

concerning the Commonwealth Court cases exchanged between Eckert

2 It is our understanding that Parx’s applications to intervene

remain pending.

attorneys on the one hand and Parx, HMS, and their agents on the other

hand. Eckert has objected, asserting attorney-client privilege and work-

product protection with respect to various documents identified on a 30-

page privilege log. POM has moved to compel the production of these

documents, and Eckert has moved for a protective order precluding

production of these documents.

POM also served non-party subpoenas on HMS and Parx, seeking

any similar documents that were in their possession. HMS and Parx have

entered their appearances here and moved to quash the subpoenas or for

a protective order, asserting attorney-client privilege and work-product

protection with respect to documents identified on their own privilege

logs. Parx has further adopted the privilege logs of Eckert and HMS with

respect to any documents in the possession of the two law firms, but

which might belong to Parx as client.

Following oral argument, the parties met and conferred to winnow

the list of documents to be submitted for in camera review. Those

documents have been submitted and reviewed by the court in camera. It

is our understanding that any other discovery disputes raised by the

parties in their motion papers have been resolved among them.

II. APPLICABLE STANDARDS

A. Attorney-Client Privilege

This is a diversity case. Therefore, Pennsylvania state law governs

whether attorney-client privilege applies to the documents at issue. See

Fed. R. Evid. 501; United Coal Cos. v. Powell Constr. Co., 839 F.2d 958,

965 (3d Cir. 1988). See generally 42 Pa. Cons. Stat. Ann. § 5928 (“In a

civil matter counsel shall not be competent or permitted to testify to

confidential communications made to him by his client, nor shall the

client be compelled to disclose the same, unless in either case this

privilege is waived upon the trial by the client.”).

“Because the attorney-client privilege obstructs the truth-finding

process, it is construed narrowly.” Westinghouse Elec. Corp. v. Republic

of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991); see also Harrisburg

Auth. v. CIT Capital USA, Inc., 716 F. Supp. 2d 380, 387 (M.D. Pa. 2010)

(noting that, under Pennsylvania law, the attorney-client privilege is

generally disfavored and should be narrowly construed). For the

attorney-client privilege to attach to a communication, “it must be ‘(1) a

communication (2) made between privileged persons (3) in confidence (4)

for the purpose of obtaining or providing legal assistance for the client.’”

In re Teleglobe Commc’ns Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quoting

Restatement (Third) of the Law Governing Lawyers § 68 (2000)

[hereinafter, “Restatement (3d) Lawyers”]). “‘Privileged persons’ include

the client, the attorney(s), and any of their agents that help facilitate

attorney-client communications or the legal representation.” Id. at 359

(citing Restatement (3d) Lawyers § 70). “A communication is only

privileged if it is made ‘in confidence.’” Id. at 361 (citing Restatement (3d)

Lawyers § 68). “[I]f persons other than the client, its attorney, or their

agents are present, the communication is not made in confidence, and the

privilege does not attach.” Id. at 361.

“As a general matter, the privilege is not destroyed when a person

other than the lawyer is present at a conversation between an attorney

and his or her client if that person is needed to make the conference

possible or to assist the attorney in providing legal services.” Miller v.

Haulmark Transp. Sys., 104 F.R.D. 442, 445 (E.D. Pa. 1984). “These

exceptions are consistent with the goal underlying the privilege because

[this] type of disclosure is sometimes necessary for the client to obtain

informed legal advice.” Westinghouse, 951 F.2d at 1424.

B. Work-Product Doctrine

“Unlike the attorney-client privilege, the work product privilege is

governed, even in diversity cases, by a uniform federal standard

embodied in the federal rules.” U.S. Fid. & Guar. Co. v. Barron Indus.,

Inc., 809 F. Supp. 355, 364 n.10 (M.D. Pa. 1992) (citing United Coal Cos.,

839 F.2d at 966). “The work product doctrine is governed by a uniform

federal standard set forth in Fed. R. Civ. P. 26(b)(3) and ‘shelters the

mental processes of the attorney, providing a privileged area within

which he can analyze and prepare his client’s case.’” In re Cendant Corp.

Sec. Litig., 343 F.3d 658, 661–62 (3d Cir. 2003).

The purpose of the work-product doctrine differs from

that of the attorney-client privilege. . . . [T]he attorney-

client privilege promotes the attorney-client

relationship, and, indirectly, the functioning of our legal

system, by protecting the confidentiality of

communications between clients and their attorneys. In

contrast, the work-product doctrine promotes the

adversary system directly by protecting the

confidentiality of papers prepared by or on behalf of

attorneys in anticipation of litigation. Protecting

attorneys’ work product promotes the adversary system

by enabling attorneys to prepare cases without fear that

their work product will be used against their clients.

Westinghouse, 951 F.2d at 1427–28. Moreover,

the doctrine is an intensely practical one, grounded in

the realities of litigation in our adversary system. One

of those realities is that attorneys often must rely on the

assistance of investigators and other agents in the

compilation of materials in preparation for trial. It is

therefore necessary that the doctrine protect material

prepared by agents for the attorney as well as those

prepared by the attorney himself.

United States v. Nobles, 422 U.S. 225, 238–39 (1975) (footnote omitted).

Thus, under Rule 26(b)(3), the work-product doctrine shields from

discovery “documents and tangible things that are prepared in

anticipation of litigation or for trial by or for another party or its

representative (including the other party’s attorney, consultant, surety,

indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). “In

distinguishing between proceedings which qualify as litigation and those

that do not, the adversarial nature of the proceeding is characteristic of

litigation.” In re Rail Freight Fuel Surcharge Antitrust Litig., 268 F.R.D.

114, 117 (D.D.C. 2010). Although a common hallmark of litigation is

whether “the parties have the right to cross-examine witnesses or to

subject an opposing party’s presentation of proof to equivalent

disputation,” see United States v. Am. Tel. & Tel. Co., 86 F.R.D. 603, 627

(D.D.C. 1980),

[t]he proper focus should be whether the proceeding

required the lawyer to function as lawyers usually do at

a trial so that the proceeding can be classified as

“litigation.” This properly segregates the transactional

work of lawyers who draft contracts or provide legal

advice from lawyers who have to represent clients before

tribunals that have the power to adjudicate their clients’

rights, whatever the nature of the proceeding. If the

tribunal has the power to adjudicate those rights and

demands that the party before it either make a certain

showing or disprove a particular allegation, the process

is adversarial by its very nature and surely qualifies as

litigation.

Rail Freight Fuel Surcharge, 268 F.R.D. at 118; see also Restatement (3d)

Lawyers § 87 cmt. H (“In general, a proceeding is adversarial when

evidence or legal argument is presented by parties contending against

each other with respect to legally significant factual issues.”).

Rule 26(b)(3) establishes two categories of protection: fact work

product and opinion work product. “Fact work product is discoverable

only upon a showing [of] ‘substantial need’ and by demonstrating that

one cannot otherwise obtain the ‘substantial equivalent’ of such

materials without ‘undue hardship.’” In re Linerboard Antitrust Litig.,

237 F.R.D. 373, 381 (E.D. Pa. 2006) (quoting Fed. R. Civ. P. 26(b)(3)).

Opinion work product, “which consists of ‘mental impressions,

conclusions, opinions, or legal theories of an attorney,’ is afforded almost

absolute protection” and it “is discoverable ‘only upon a showing of rare

and exceptional circumstances.’” Linerboard, 237 F.R.D. at 381 (quoting

Cendant, 343 F.3d at 663).

Waiver of the work-product doctrine also works differently than

waiver of the attorney-client privilege. Unlike the attorney-client

privilege, where disclosure to a third party waives the privilege unless

the disclosure is necessary to further the legal representation, “the work-

product doctrine serves instead to protect an attorney’s work product

from falling in to the hands of an adversary,” and thus “disclosure must

enable an adversary to gain access to the information” for it to constitute

waiver of work-product protection. Westinghouse, 951 F.2d at 1428; see

also Miller, 104 F.R.D. at 445–46.

Finally, we note that,

[o]rdinarily, the work-product doctrine should only be

applied after it is decided that attorney-client privilege

does not apply. This is because the work-product

doctrine applies only to “documents and tangible things

otherwise discoverable.” If the attorney-client privilege

applies to a particular item, it is absolutely

undiscoverable and the work-product rule does not

apply.

Robinson v. Texas Automobile Dealers Ass’n, 214 F.R.D. 432, 442 (E.D.

Tex. 2003) (citations omitted) (quoting Fed. R. Civ. P. 26(b)(3)), vacated

in part on other grounds by 2013 WL 21911333 (5th Cir. July 25, 2003)

(mem.).

III. DISCUSSION

A. Rule 1.6 Duty of Confidentiality

Eckert, Parx, and HMS each argue that the requested discovery is

barred by Rule 1.6 of the Pennsylvania Rules of Professional Conduct,

which provides that “[a] lawyer shall not reveal information relating to

representation of a client unless the client gives informed consent, except

for disclosures that are impliedly authorized in order to carry out the

representation, and except as stated in paragraphs (b) and (c) [of Rule

1.6].” Pa. R. Prof’l Conduct 1.6(a). “The confidentiality provisions of Rule

1.6 provide broader protections than does the attorney-client privilege.”

Office of Disciplinary Counsel v. Baldwin, 225 A.3d 817, 843 (Pa. 2020);

see also In re Gartley, 491 A.2d 851, 859 (Pa. Super. Ct. 1985) (“The

attorney-client privilege is more limited than the ethical obligation of a

lawyer to guard the confidences and secrets of his clients.”), aff’d sub

nom. In re Search Warrant B-21778, 521 A.2d 422 (Pa. 1987).

But this is a discovery dispute in a federal civil action, not an

ethical complaint in disciplinary or disqualification proceedings. It is the

Pennsylvania attorney-client privilege statute, 42 Pa. Cons. Stat. Ann.

§ 5928,3 and the federal work-product doctrine, Fed. R. Civ. P. 26(b)(3),

that govern the scope of discoverable information or documents in this

case, not Rule 1.6. See Frieman v. USAir Grp., Inc., Civ. A. No. 93-3142,

1994 WL 675221, at *6 (E.D. Pa. Nov. 23, 1994).

Although Pennsylvania courts have recognized that a

lawyer’s duty of confidentiality is quite extensive, the

Rules of Professional Conduct are not substantive law.

Rather, those rules govern disciplinary proceedings

against Pennsylvania attorneys, and, through its

Supreme Court, the Commonwealth has said that the

rules do not govern or affect judicial application of the

attorney-client privilege.

United States v. Servin, 721 Fed. App’x 156, 159 (3d Cir. 2018) (citations,

internal quotation marks, brackets, and ellipses omitted) (affirming

district court order denying motion to quash IRS summonses); see also

Hodczak v. Latrobe Specialty Steel Co., Civil Action No. 08-649, 2010 WL

4137515, at *2 (W.D. Pa. Aug. 10, 2010). See generally Pa. R. Prof’l

Conduct 1.6 cmt. [3] (“The attorney-client privilege and work-product

doctrine apply in judicial and other proceedings in which a lawyer may

be called as a witness or otherwise required to produce evidence

3 When the claims and defenses at issue in a civil case arise under

state law, the scope of attorney-client privilege is governed by state law.

Fed. R. Evid. 501.

concerning a client. The rule of client-lawyer confidentiality applies in

situations other than those where evidence is sought from the lawyer

through compulsion of law.”). Indeed, the Rule itself contemplates as

much, expressly providing that “[a] lawyer may reveal such information

to the extent that the lawyer reasonably believes necessary . . . to comply

with other law or court order.” Pa. R. Prof’l Conduct 1.6(c)(8). The Federal

Rules of Civil Procedure constitute such “other law,” and the order that

accompanies this memorandum opinion constitutes such a “court order.”

Rule 1.6 simply provides no basis upon which to deny the motion to

compel or to grant the motions for a protective order or to quash the

subpoenas. See Servin, 721 Fed. App’x at 159–60.

B. Email Strings

The documents at issue here consist mostly of email messages and

attachments.4 As a general rule, “each version of an email string (i.e. a

forward or reply of a previous email message) must be considered as a

separate, unique document.” Rhoads Indus., Inc. v. Bldg. Materials Corp.

of America, 254 F.R.D. 238, 240 (E.D. Pa. 2008); accord United States v.

4 HMS has produced a handful of text message exchanges for in

camera review as well.

Davita, Inc., 301 F.R.D. 676, 684–85 (N.D. Ga. 2014); Dempsey v.

Bucknell Univ., 296 F.R.D. 323, 336–37 (M.D. Pa. 2013).

For example, an email string consisting of four email

messages would have four distinct versions: (1) the most

recent version consisting of Email 4 (most recent), Email

3, Email 2, and Email 1 (original email), (2) a prior

version consisting of Email 3, Email 2, and Email 1, (3)

a prior version consisting of Email 2 and Email 1, and

(4) the original Email 1. Additionally[,] there could be

other email strings consisting of some or all of Emails 1–

4.

Rhoads Indus., 254 F.R.D. at 240 n.4. Thus, “each message of the string

which is privileged must be separately logged in order to claim privilege

in that particular document.” Rhoads Indus., 254 F.R.D. at 240–41; see

also Davita, 301 F.R.D. at 685 (“[T]he Court simply requires that

Defendants ensure that each withheld email within a string be logged in

some fashion at least once.”).

We note that the Eckert privilege log follows this approach,

describing only the author, the recipient, the subject line, and the time

and date for the top email in each version produced for in camera review.

The Eckert privilege log entries do not describe any prior emails that

might be appended to the top email, and we infer from this format that

either any claim of privilege applicable to prior email messages is

asserted separately on the log5 or any prior emails that are responsive

and non-privileged have been produced.

The HMS privilege log appears to group related email messages or

strings together, identifying several related messages or strings together

in a single entry, often without identifying all authors or recipients. See,

e.g., Acosta v. Target Corp., 281 F.R.D. 314, 320 (N.D. Ill. 2012) (“If listing

only the recipients of the last e-mail in a chain fails to disclose everyone

to whom an allegedly privilege communication has been sent, the listing

cannot be adequate. Moreover, if the recipient(s) at an e-mail address

cannot be adequately identified, it is impossible to determine whether the

privilege is properly asserted.”). Any inadequacy in the HMS privilege log

is moot, however, as the most appropriate remedy in our view would have

been in camera inspection of a select sample of the withheld documents,

which we have already done. See generally Nat’l Labor Relations Bd. v.

Jackson Hosp. Corp., 257 F.R.D. 302, 307 (D.D.C. 2009) (outlining four

common remedies for a privilege log that fails to comply with the

requirements of Fed. R. Civ. P. 26(b)(5)).

We found no defects or other issues with the Parx log.

5 The log includes several entries consistent with this inference.

C. Identification of Documents and Duplicate Copies

The Eckert documents are not Bates-labeled.6 Instead, each

separate email message appears to have been saved to a “pdf” file labeled

with the time and date it was sent, down to the second (i.e.,

“2017_02_14_15_34_42.pdf” appears to be an email sent at 3:34 p.m. on

February 14, 2017). In populating the “sent time” column of its privilege

log, however, we note that Eckert appears to have used inconsistent time

zones—some of the entries are logged using Coordinated Universal Time

instead of the Eastern Standard Time or Eastern Daylight Time recorded

on the header of the email message itself. Each email message has been

produced for in camera review together with a blue slip-sheet on which

the associated filename is printed, and we will refer to each of the Eckert

documents by this filename.7

In addition, Eckert has produced identical copies of certain email

6 We do not mean to suggest that the Eckert in camera production

is defective. The federal rules impose no obligation to Bates-label non-

privileged responsive documents produced to the other party, much less

purportedly privileged documents produced for in camera review by the

Court. See Cmty. Ass’n Underwriters of America, Inc. v. Queensboro

Flooring Corp., Civil Action No. 3:10-CV-1559, 2014 WL 12603510, at *5

(M.D. Pa. June 24, 2014). But the convention for our identification of

documents in this opinion bears explanation.

7 HMS and Parx have Bates-labeled their documents.

messages, presumably wherever two copies of the same email message

were recovered from its computer systems.8 In most instances, a second

pdf file has been produced for in camera review with “(Copy 2)” appended

to its filename.9 All rulings herein with respect to the original documents

should be construed to apply to these identical copies as well. To the

extent the original documents are ordered produced, it is unnecessary for

Eckert to also produce these identical copies of the very same documents.

We note that we originally anticipated that most—if not all—of

the documents produced by HMS for in camera review would be

duplicative of those produced by Eckert, as the subpoena directed to HMS

was generally limited to communications with Eckert attorneys. But

while there may be some overlap, HMS appears to have produced a much

more comprehensive collection of its communications with Eckert

attorneys than Eckert has. Thus, we have not endeavored to exclude any

8 2018_11_28_15_13_42 (Copy 2).pdf; 2019_05_02_13_50_00.pdf;

2019_05_06_15_43_12 (Copy 2).pdf; 2020_01_15_07_49_01.pdf;

2020_01_22_16_28_25 (Copy 2).pdf; 2020_01_23_09_19_41 (Copy 2).pdf;

2020_01_30_13_04_55 (Copy 2).pdf; 2020_02_10_14_38_15 (Copy 2).pdf;

2020_02_19_18_01_55 (Copy 2).pdf; 2020_02_19_18_21_19 (Copy 2).pdf;

2020_02_19_18_55_53 (Copy 2).pdf; 2020_02_20_16_10_20 (Copy 2).pdf;

2020_05_01_17_12_49 (Copy 2).pdf.

9 In two instances, the duplicate is time-stamped one second later

than the original.

HMS documents that may be duplicative of those to be produced by

Eckert. We have, however, identified a handful of documents that are

identical copies of other documents produced by HMS for in camera

review: we find it unnecessary for HMS to produce HMS-000815 (an

identical copy of HMS-000814), HMS-000926 (an identical copy of HMS-

000925), HMS-000972–HMS-000984 (an identical copy of HMS-000959–

HMS-000971), HMS-001323 (an identical copy of HMS-001322), or HMS-

001325 (an identical copy of HMS-001324).

D. Common-Interest Doctrine and Government Attorneys

The documents produced for in camera review by Eckert and HMS

include communications and documents shared with government

attorneys representing various state agencies and the City of

Philadelphia—the defendants in POM’s Commonwealth Court cases.

HMS has asserted attorney-client privilege with respect to some of these

materials, relying on the common-interest doctrine. Eckert has not

included any entries in its privilege log describing communications with

these government attorneys, but some of the emails described on Eckert’s

log include within them copies of prior emails shared with these

government attorneys.

Although occasionally termed a privilege itself, the

common interest doctrine is really an exception to the

rule that no privilege attaches to communications

between a client and an attorney in the presence of a

third person. In effect, the common interest doctrine

extends the attorney-client privilege to otherwise non-

confidential communications in limited circumstances.

For that reason, the common interest doctrine only will

apply where the parties undertake a joint effort with

respect to a common legal interest, and the doctrine is

limited strictly to those communications made to further

an ongoing enterprise.

United States v. BDO Seidman, LLP, 492 F.3d 806, 815–16 (7th Cir.

2007) (citation omitted). “To qualify for protection under the common-

interest privilege, ‘the communication must be shared with the attorney

of the member of the community of interest,’ and ‘all members of the

community must share a common legal interest in the shared

communication.’” In re Processed Egg Prods. Antitrust Litig., 278 F.R.D.

112, 118 (E.D. Pa. 2011) (quoting In re Teleglobe Commc’ns Corp., 493

F.3d 345, 364 (3d Cir. 2007)). “[T]he requirement that the parties to the

communication share ‘at least a substantially similar legal interest’

prevents abuse of the privilege and ‘unnecessary information sharing.’”

Id. (quoting Teleglobe, 493 F.3d at 365) (footnote omitted). “The common

interest binding parties to the communication must be legal in nature,

and not merely commercial or business related.” Id. at 118 n.6 (emphasis

added).

Here, HMS contends that Parx has shared a common legal interest

with the government defendants insofar as they are all opposed to POM’s

litigation position in the Commonwealth Court cases. But the legal

interest of the government defendants in the Commonwealth Court cases

is that of regulators of gaming devices, such as those manufactured and

sold by POM. As regulators, the government defendants represent the

public interest, not any particular commercial or business interest.

Meanwhile, Parx has intervened—or sought to intervene—in the

Commonwealth cases based on its commercial interests: in short, the

gaming devices manufactured and sold by POM are competition for its

casino business, which is likewise regulated by the same government

regulators. This economic interest may align Parx with the policy

interests of the government regulators in POM’s Commonwealth Court

cases, but ultimately, they are not substantially similar legal interests,

and thus the common-interest doctrine does not shield communications

or documents shared between Parx’s attorneys and the government

attorneys from disclosure. See Hope for Families & Cmty. Serv., Inc. v.

Warren, No. 3:06-CV-1113-WKW, 2009 WL 174970, at *24–*25 (M.D.

Ala. Jan. 26, 2009).

Based on our in camera review, the following documents are non-

privileged communications involving attorneys representing government

regulators with whom Parx did not share a common legal interest. The

objections raised by HMS and Parx are overruled, and the following

documents shall be produced to the plaintiffs:

1) HMS-000714–HMS-000722 9) HMS-001113–HMS-001117

2) HMS-000816 10) HMS-001118–HMS-001119

3) HMS-000959–HMS-000971 11) HMS-001131–HMS-001132

4) HMS-001083–HMS-001088 12) HMS-001331–HMS-001334

5) HMS-001089–HMS-001092 13) HMS-001335–HMS-001338

6) HMS-001093–HMS-001105 14) HMS-001339–HMS-001340

7) HMS-001106–HMS-001107 15) HMS-001341–HMS-001342

8) HMS-001108–HMS-001112 16) HMS-001343–HMS-001345

E. Transmittal Messages

Several of the documents logged by Eckert and HMS are mere

transmittal messages to or from attorneys forwarding other messages or

documents that are not themselves privileged or otherwise protected

from disclosure. It is well settled that “[t]ransmittal documents

themselves are not privileged unless they reveal the client’s confidences.”

Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 79 (S.D.N.Y. 2010).

Likewise, work-product protection does not attach to mere transmittal

letters that do not contain the mental impressions of counsel. See Smith

ex rel. Smith v. United States, 193 F.R.D. 201, 214 (D. Del. 2000); see also

Dixie Mill Supply Co., Inc. v. Continental Cas. Co., 168 F.R.D. 554, 559

(E.D. La. 1996) (“Mere transmittal or confirmation letters, which do not

contain any confidential communications or attorney advice, opinion or

mental impressions, are not privileged simply because they are written

by or to an attorney.”). Although “attached documents may themselves

be protected by the attorney-client privilege or the work-product

doctrine, . . . the transmittal messages are not.” Dempsey v. Bucknell

Univ., 296 F.R.D. 323, 336 (M.D. Pa. 2013). With respect to such

transmittal messages, the objection to production will be overruled and

the defendant will be ordered to produce these documents.

Based on our in camera review, the following documents are non-

privileged transmittal messages, containing no confidential client

information or legal advice. The objections of Eckert, HMS, and Parx are

overruled, and the following documents shall be produced to the

plaintiffs:

1) 2019_07_16_23_06_14.pdf 5) 2019_11_22_14_06_31.pdf

2) 2019_11_20_19_57_16.pdf 6) 2019_11_25_18_01_20.pdf

3) 2019_11_21_11_35_26.pdf 7) 2019_12_19_09_16_07.pdf

4) 2019_11_22_12_39_49.pdf 8) 2019_12_19_14_38_32.pdf

9) 2019_12_20_09_58_07.pdf 22) 2020_05_13_08_41_56.pdf

10) 2020_01_03_16_02_42.pdf 23) 2020_05_15_16_11_57.pdf

11) 2020_01_13_16_49_17.pdf 24) HMS-000709

12) 2020_01_21_10_57_52.pdf 25) HMS-000725–HMS-000732

13) 2020_01_21_12_58_11.pdf 26) HMS-000745–HMS-000811

14) 2020_01_27_11_17_33.pdf 27) HMS-000936–HMS-000938

15) 2020_01_28_11_55_57.pdf 28) HMS-000949

16) 2020_02_05_11_40_20.pdf 29) HMS-000950–HMS-000951

17) 2020_02_05_11_42_28.pdf 30) HMS-000952

18) 2020_02_06_17_03_53.pdf 31) HMS-000953–HMS-000956

19) 2020_02_20_16_08_56.pdf 32) HMS-000957–HMS-000958

20) 2020_02_20_16_11_16.pdf 33) HMS-001049–HMS-001056

21) 2020_05_11_10_57_45.pdf

We have further found two copies of one transmittal message that

should be disclosed with redaction. In a November 27, 2019, email

message—identified as 2019_11_27_14_13_25.pdf by Eckert and HMS-

000001–HMS-000059 by HMS—Stewart forwarded to McKeon a prior

non-privileged email message with attachments concerning non-

privileged business and lobbying issues, which was sent to numerous

recipients regarding “Documents discussed on 10/31 Industry call.” In

addition to that prior email and its attachments, Stewart attached a copy

of a draft brief prepared by other counsel for other litigation to which

POM is not a party, identified in the Eckert document as an attachment

named “PLD – BRIEF IOT TO DEF RAJESHWARI”S PRELMINARY

OBJECTIONS TO COMPLAINT …docx” and identified in the HMS

document by Bates-labeled pages HMS-000035–HMS-000059. This draft

appears to constitute protected work product. Therefore, the objections of

Eckert, HMS, and Parx with respect to these documents are overruled in

part and sustained in part; Eckert and HMS shall produce these

documents with appropriate redactions.

F. Business Conversations

HMS has produced for in camera review a short set of text

messages exchanged between Stewart and McKeon on February 20,

2020, described in HMS’s log as concerning the “POM lawsuit” against

Eckert: HMS-001322 and HMS-001324. But while this text message

conversation may have indirectly involved the instant lawsuit by POM

against Eckert, upon in camera review, it is clear that these

communications do not involve any legal advice or services, and they

were created in the ordinary course of law firm business. The

conversation between the two lawyers concerned Stewart’s efforts to

retain Parx as a client, which required discussions with various members

of the client’s board of directors. The objections by Eckert, HMS, and Parx

are overruled, and documents HMS-001322 and HMS-001324 shall be

produced to the plaintiff.

G. Lobbying and Public Affairs Communications

Many entries on Eckert’s privilege log identify communications

with lobbyists and public relations professionals. In particular, these

include emails exchanged with Richard Gmerek and Sean Schafer, both

of whom are lawyer-lobbyists, and with Pete Shelly and Charlie Lyons,

both of whom are non-lawyer public affairs professionals.

With respect to the lawyer-lobbyists, Gmerek and Schafer, it is

axiomatic that “communications, even between lawyer and client, are not

privileged unless they are made for the purpose of rendering legal advice

or, to use another formulation, unless they related to the rendition of

‘professional legal services.’” In re Chevron Corp., 749 F. Supp. 2d 141,

165 (S.D.N.Y. 2010) (footnotes omitted). “Lawyers sometimes act as

lobbyists, and thus the issue has arisen as to whether the attorney-client

and work-product privileges protect communications made and materials

prepared in the course of a lawyer’s lobbying efforts.” In re Grand Jury

Subpoenas, 179 F. Supp. 2d 270, 285 (S.D.N.Y. 2001). “Lobbying

conducted by attorneys does not necessarily constitute legal services for

purposes of the attorney-client privilege.” United States Postal Serv. v.

Phelps Dodge Refining Corp., 852 F. Supp. 156, 164 (E.D.N.Y. 1994).

Of course, the inquiry is fact-specific. The fact that a

lawyer occasionally acts as a lobbyist does not preclude

the lawyer from acting as a lawyer and having

privileged communications with a client who is seeking

legal advice. . . . On the other hand, “[i]f a lawyer

happens to act as a lobbyist, matters conveyed to the

attorney for the purpose of having the attorney fulfill the

lobbyist role do not become privileged by virtue of the

fact that the lobbyist has a law degree or may under

other circumstances give legal advice to the client,

including on matters that may also be the subject of the

lobbying efforts.”

Grand Jury Subpoenas, 179 F. Supp. 2d at 285.

“Communications that merely summarize the content of public

meetings or that relate to the status of lobbying efforts have been held

not to be privileged where they do not rise to the level of legal advice.”

Robinson, 214 F.R.D. at 445; see also Phelps Dodge, 852 F. Supp. at 164.

But “[i]f a lawyer who is also a lobbyist gives advice that requires legal

advice that requires legal analysis of legislation, such as interpretation

or application of the legislation to fact scenarios, that is certainly the type

of communication that the privilege is meant to protect.” Robinson, 214

F.R.D. at 446. Ultimately, in evaluating communications with Gmerek

and Schafer,10 we must look to see whether the primary or predominant

10 Or other lawyers involved in these lobbying discussions.

purpose of the communication was to procure legal advice, as opposed to

legislative, lobbying, or public relations services. See Burton v. R.J.

Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 484 (D. Kan. 1997) (“Legal

advice must predominate for the communication to be protected. The

privilege does not apply where the legal advice is merely incidental to

business advice. Lobbying services performed by an attorney on behalf of

a client do not constitute legal services for purposes of the attorney-client

privilege.”) (citations omitted); see also Chevron, 749 F. Supp. 2d at 165;

NXIVM Corp. v. O’Hara, 241 F.R.D. 109, 126, 129 (N.D.N.Y. 2007);

Robinson, 214 F.R.D. at 446.

With respect to the non-lawyer public affairs professionals, Shelly

and Lyons, such communications generally are not protected by attorney-

client privilege because they predominantly relate to standard public

relations or messaging issues, rather than legal advice or issues. See In

re Riddell Concussion Reduction Litig., Civil No. 13-7585 (JBS/JS), 2016

WL 7108455, at *9 (D.N.J. Dec. 5, 2016). “A media campaign is not a

litigation strategy. Some attorneys may feel it is desirable at times to

conduct a media campaign, but that does not transform their

coordination of a campaign into legal advice.” Haugh v. Schroder Inv.

Mgmt. North America, Inc., No. 02 Civ.9755 DLC, 2003 WL 21998674, at

*3 (S.D.N.Y. Aug. 25, 2003); see also Riddell, 2016 WL 7108455, at *9

(quoting Haugh and NXIVM); Chevron, 749 F. Supp. 2d at 165 n.142

(quoting Haugh); NXIVM, 241 F.R.D. at 141 (citing Haugh).

Communications such as these are protected only “if the public relations

consultants’ communications are made in connection with ongoing or

anticipated litigation and the [public relations] advice is directed at

supporting the client’s litigation position, or the P.R. input is necessary

for an attorney to provide legal advice.” Riddell, 2016 WL 7108455, at *9.

Based on our in camera review, the following documents are non-

privileged communications concerning lobbying or public relations advice

or services. Any legal advice contained therein is no more than incidental

to the predominant lobbying or public relations purposes of these

documents.11 The objections by Eckert, HMS, and Parx are overruled,

and the following documents shall be produced to the plaintiffs:

1) 2019_04_15_11_30_49.pdf 2) 2019_05_02_13_49_59.pdf

11 We note that document 2019_05_02_13_49_59.pdf includes a

legal memorandum as an attachment, but the email itself indicates that

this memorandum was previously disclosed to government attorneys and

other third parties, and thus it is not privileged. We further note that

several other documents include drafts of legal opinions prepared for

dissemination to legislators or other non-privileged recipients.

3) 2019_05_02_15_29_57.pdf 39) 2019_11_22_09_32_09.pdf

4) 2019_05_02_16_40_39.pdf 40) 2019_11_22_11_57_40.pdf

5) 2019_05_28_16_03_43.pdf 41) 2019_11_22_17_36_12.pdf

6) 2019_05_28_16_22_48.pdf 42) 2019_12_09_23_08_38.pdf

7) 2019_05_29_12_09_56.pdf 43) 2019_12_10_07_02_32.pdf

8) 2019_06_03_15_53_47.pdf 44) 2019_12_10_07_07_26.pdf

9) 2019_06_12_16_55_18.pdf 45) 2019_12_10_09_24_14.pdf

10) 2019_06_14_14_19_52.pdf 46) 2019_12_10_09_25_46.pdf

11) 2019_06_14_14_29_36.pdf 47) 2019_12_11_23_24_42.pdf

12) 2019_06_14_14_56_58.pdf 48) 2019_12_11_23_39_21.pdf

13) 2019_06_14_17_21_16.pdf 49) 2019_12_13_10_10_12.pdf

14) 2019_06_14_17_50_13.pdf 50) 2019_12_13_10_12_21.pdf

15) 2019_06_14_17_51_46.pdf 51) 2019_12_13_10_13_06.pdf

16) 2019_06_17_16_05_21.pdf 52) 2019_12_13_11_16_51.pdf

17) 2019_06_17_16_51_49.pdf 53) 2019_12_13_13_31_21.pdf

18) 2019_06_17_17_22_56.pdf 54) 2019_12_13_13_47_48.pdf

19) 2019_06_17_17_30_08.pdf 55) 2019_12_19_13_34_47.pdf

20) 2019_11_20_16_48_14.pdf 56) 2019_12_31_11_12_17.pdf

21) 2019_11_20_17_26_23.pdf 57) 2020_02_05_16_41_30.pdf

22) 2019_11_20_17_39_02.pdf 58) 2020_02_07_10_34_48.pdf

23) 2019_11_20_18_09_05.pdf 59) 2020_03_04_16_39_04.pdf

24) 2019_11_20_18_19_20.pdf 60) 2020_03_04_16_48_08.pdf

25) 2019_11_20_18_31_03.pdf 61) 2020_03_04_17_42_47.pdf

26) 2019_11_20_18_35_51.pdf 62) 2020_03_04_17_51_05.pdf

27) 2019_11_20_18_42_52.pdf 63) 2020_03_04_18_05_41.pdf

28) 2019_11_21_09_59_17.pdf 64) 2020_03_06_10_43_08.pdf

29) 2019_11_21_11_33_54.pdf 65) 2020_03_20_10_09_48.pdf

30) 2019_11_21_13_09_31.pdf 66) 2020_03_20_10_12_30.pdf

31) 2019_11_21_13_26_27.pdf 67) 2020_03_21_08_30_59.pdf

32) 2019_11_21_14_08_51.pdf 68) 2020_03_22_13_31_45.pdf

33) 2019_11_21_14_19_51.pdf 69) HMS-000064–HMS-000072

34) 2019_11_21_14_28_53.pdf 70) HMS-000073–HMS-000075

35) 2019_11_21_14_31_13.pdf 71) HMS-000076–HMS-000083

36) 2019_11_21_14_32_31.pdf 72) HMS-000084–HMS-000085

37) 2019_11_21_14_57_04.pdf 73) HMS-000086–HMS-000087

38) 2019_11_21_15_00_21.pdf

In addition, the following documents are email strings in which

the top email is itself a non-privileged communication concerning

lobbying or public relations advice or services, but prior emails providing

legal advice or analysis with respect to lobbying issues are included in

the email string. The following documents shall be produced, but with

the emails sent by Richard Gmerek at 11:06 a.m. on March 1, 2019, and

by Mark Stewart at 11:01 a.m. on March 1, 2019, redacted:

1) 2019_03_01_11_39_44.pdf 3) 2019_03_01_15_58_37.pdf

2) 2019_03_01_15_53_16.pdf 4) 2019_03_01_16_00_10.pdf

H. Subject-Matter Waiver by Selective Disclosure

The plaintiff contends that, in Commonwealth Court filings, Parx

selectively disclosed the substance of communications between McKeon

and Stewart with respect to preparation of an amicus brief, including a

printout of a text message exchange as to which HMS and Parx have

asserted a claim of attorney-client privilege in this litigation. POM

argues that this selective disclosure effects a broad subject-matter waiver

of attorney-client privilege with respect to all communications between

Eckert and HMS attorneys regarding the same subject matter, POM’s

Commonwealth Court cases. While the federal courts have recognized a

broad subject-matter waiver doctrine with respect to federal claims,

“Pennsylvania courts have not adopted subject-matter waiver.” Bagwell

v. Pennsylvania Dep’t of Educ., 103 A.3d 409, 419 (Pa. Commw. Ct. 2014).

As we have previously noted, in a diversity action such as this one,

Pennsylvania state law governs whether attorney-client privilege applies

to the documents at issue. See Fed. R. Evid. 501. Thus, we do not find a

broad subject-matter waiver appropriate in this case.

We do find, however, that any applicable attorney-client privilege

or work-product protection with respect to HMS-000060–HMS-000063

has been waived based on the specific disclosure or description of the

substance of these text messages between Stewart and McKeon in the

Commonwealth Court proceedings. Indeed, not only was it described in

Parx’s filings there, but HMS-000060 itself was filed as an exhibit.

I. Judicial Estoppel and Implied Waiver of Privilege

Eckert has repeatedly, and unequivocally, denied that it has

represented an adverse party in litigation against POM. In its answer

and affirmative defenses in this case, Eckert expressly pleaded that:

(1) “Eckert does not represent a party adverse to POM in litigation,” (Doc.

9 ¶ 18); and (2) “Eckert is not counsel in any litigation where POM is an

adverse party,” (id. at 13 (Seventeenth Affirmative Defense)). In the Joint

Case Management Plan submitted by both parties, Eckert stated that:

“Eckert is not involved in [POM’s Commonwealth Court] case.” (Doc. 18

§ 1.1.) In its brief in opposition to the plaintiff’s motion for a preliminary

injunction, Eckert stated that: “Eckert is not representing parties in

litigation adverse to POM.” (Doc. 21, at 2.)

POM has sought to test these representations through discovery,

requesting the production of documents by Eckert that

refer or relate to or otherwise embody communications

with any person or entity concerning the matter

captioned POM of Pennsylvania, LLC v. Commonwealth

of Pennsylvania, Department of Revenue and City of

Philadelphia, docketed at 418 M.D. 2018 in the

Commonwealth Court of Pennsylvania, or the matter

captioned POM of Pennsylvania, LLC v. Pennsylvania

State Police, Bureau of Liquor Control Enforcement,

docketed at 503 M.D. 2018 in the Commonwealth Court

of Pennsylvania, including, but not limited to,

communications with any amicus counsel representing

[Parx] and communications to municipal, government

and regulatory bodies that reference or relate to either

action.

(Doc. 51-6, at 3.) POM has also served an interrogatory requesting that

Eckert

[i]dentify and describe with particularity all

communications that any Eckert lawyer, including

Mark S. Stewart, had with any amicus counsel for [Parx]

in the matter captioned POM of Pennsylvania, LLC v.

Pennsylvania State Police, Bureau of Liquor Control

Enforcement, docketed at No. 503 M.D. 2018 in the

Commonwealth Court, including, but not limited to, at

the hearing in the Commonwealth Court on January 15,

2020.

(Doc. 51-7, at 3.) Eckert has withheld responsive documents and refused

to answer the interrogatory on the ground that such documents and

information are protected from disclosure by attorney-client privilege.12

In both cases, Parx has moved to intervene as a party-opponent of POM,13

and in one of these cases, it has appeared as amicus curiae in opposition

to a motion for a preliminary injunction by POM as well. In both cases,

Parx has appeared through counsel of record Kevin McKeon and Adrian

King. The withheld documents—and presumably any information

responsive to the interrogatory response as well—involve

communications between Stewart and other Eckert attorneys, on the one

hand, and King, McKeon, and Parx on the other.

Perhaps it goes without saying, but “[f]irst and foremost, the

attorney-client privilege applies only if an attorney-client relationship

exists.” Bare v. Cruz, Civil Action No. 10-4546, 2012 WL 1138591, at *3

12 Eckert has also invoked the work-product doctrine.

13 The motions to intervene remain pending in both cases.

(E.D. Pa. Apr. 2, 2012). “The privilege requires the existence of a

relationship in which an attorney is acting in his professional capacity as

a lawyer; the key is whether there has been a professional consultation

with an attorney, who acts or advises as such.” Constand v. Cosby, 232

F.R.D. 494, 502 (E.D. Pa. 2006) (quoting Okum v. Unemployment

Compensation Bd. of Review, 465 A.2d 1324, 1325 (Pa. Commw. Ct.

1983)). Here, in this litigation, Eckert has taken the position that it is not

involved in any other litigation where POM is an adverse party. At the

same time, Eckert has taken the position that its communications with

counsel representing Parx and other clients actively opposing POM in the

Commonwealth Court cases are protected by attorney-client privilege,

which necessarily requires an attorney-client relationship between

Eckert and those adverse parties. The two positions cannot be reconciled.

Judicial estoppel is an equitable doctrine that entails “the intrinsic

ability of courts to dismiss an offending litigant’s complaint without

considering the merits of the underlying claims when such dismissal is

necessary to prevent a litigant from playing fast and loose with the

courts.” In re Kane, 628 F.3d 631, 637 (3d Cir. 2010). “Though there is no

rigid test for judicial estoppel, three factors inform a federal court’s

decision whether to apply it: there must be (1) ‘irreconcilably inconsistent

positions;’ (2) ‘adopted . . . in bad faith;’ and (3) ‘a showing that . . .

estoppel address[es] the harm and . . . no lesser sanction [is] sufficient.’”

G-I Holdings, Inc. v. Reliance Ins. Co., 586 F.3d 247, 262 (3d Cir. 2009)

(quoting Chao v. Roy’s Constr., Inc., 517 F.3d 180 186 n.5 (3d Cir. 2008))

(alterations in original).

Based on our in camera review, and under the circumstances

presented in this case, we find the defendant is estopped from asserting

attorney-client privilege with respect to the following documents based

on its express statements in pleadings and other papers before this court

that it does not represent an adverse party, such as Parx, and it is not

otherwise “involved” in the POM Commonwealth Court cases. See G-I

Holdings, 586 F.3d at 262 (noting that judicial estoppel may be applied

to neutralize threats to judicial integrity even if a court has not accepted

the initial position); In re Berks Behavioral Health LLC, 500 B.R. 711,

721 (E.D. Pa. Bankr. 2013) (estopping a debtor-plaintiff in an adversary

action from recharacterizing his son’s role with the company to assert

privilege when he had previously contended that his son had no role with

the company). Moreover, to the extent Parx has adopted Eckert’s

privilege log and seeks to interpose attorney-client privilege on its own

behalf with respect to documents in Eckert’s possession, Parx is likewise

estopped from asserting attorney-client privilege with respect to these

documents based on its papers filed in the Commonwealth Court cases,

in which Parx and its counsel of record there (HMS) have expressly

represented that “Eckert is not counsel in this case” and implicitly

represented that Eckert played no substantial role in Parx’s activities in

those cases. (See Doc. 82, at 162–68.)

In particular, we find that Eckert and Parx have adopted

irreconcilably inconsistent positions with respect to whether Eckert

represented and provided legal advice and services to Parx in connection

with the Commonwealth Court cases, where POM and Parx were directly

adverse, when denying liability or opposing disqualification on the one

hand versus invoking attorney-client privilege in attempting to shield

documents concerning that (non-)representation from disclosure. We find

that, based on our in camera review of these purportedly privileged

documents, these inconsistent positions were arguably adopted in bad

faith. Finally, we find that, under the particular circumstances of this

case, the estoppel addresses the harm to POM, Eckert’s other client, and

no lesser sanction would suffice.

We further find that these documents are not protected by the

work-product doctrine. “Many courts faced with the issue of the

production of opinion work product have recognized an exception to Rule

26(b)(3) protection for work product which concerns the activities of

counsel that are directly in issue. Charlotte Motor Speedway, Inc. v. Int’l

Ins. Co., 125 F.R.D. 127, 130 (M.D.N.C. 1989); see also Hartman v. Banks,

164 F.R.D. 167, 170 (E.D. Pa. 1995) (“[O]pinion work product can be

discovered in cases in which the opinions of an attorney or his agent are

themselves at issue.”); In re Sunrise Sec. Litig., 130 F.R.D. 560, 567 (E.D.

Pa. 1989) (“Allegations of . . . misconduct while rendering legal advice

also can place attorneys’ mental impressions and opinions directly at

issue and eliminate work product protection.”); Truck Ins. Exch. v. St.

Paul Fire & Marine Ins. Co., 66 F.R.D. 129, 136 (E.D. Pa. 1975) (“[T]he

materials in [counsel’s] file are sought here because they are at issue in

this action before the Court. The activities of counsel in the underlying

lawsuit are the basis of the [defendant’s] defense in this case.”); Sec. &

Exch. Comm’n v. Nat’l Student Mktg. Corp., 18 Fed. R. Serv. 2d 1302,

1974 WL 415, at *3 (D.D.C. June 25, 1974) (no work-product protection

where production requests were served on law firm as defendants and

activities of counsel were at issue in the action before the court). See

generally 8 Richard L. Marcus, Federal Practice and Procedure § 2026 (3d

ed. 2020) (“[C]ourts have found such disclosure justified principally

where the material is directly at issue, particularly if the lawyer or law

firm is a party to the litigation.”); 6 James Wm. Moore, et al., Moore’s

Federal Practice § 26.70[6][c] (3d ed. 2020) (“A party . . . impliedly waives

work product protection if it places the substance of the documents for

which the protection is claimed at issue.”). Courts have also held that the

work-product doctrine cannot shield a lawyer’s papers from discovery

where that work product implicates or creates a conflict of interest. See

Koen Book Distributors, Inc. v. Powell, Trachtman, Logan, Carrle,

Bowman & Lombardo, P.C., 212 F.R.D. 283, 286 (E.D. Pa. 2002); cf.

Sunrise Sec. Litig., 130 F.R.D. at 597 (no attorney-client privilege where

law firm’s communication with in-house counsel implicated or created a

conflict between law firm’s fiduciary duties to itself and to the client

seeking to discover the communication); Valente v. Pepsico, Inc., 68

F.R.D. 361, 368–70 (E.D. Pa. 1975) (finding attorney-client privilege did

not apply where a conflicted attorney subordinated one client’s interest

to another’s).

Accordingly, the objections of Eckert, HMS, and Parx are

overruled, and the following documents shall be produced to the

plaintiffs:

1) 2019_12_13_13_45_48.pdf 31) 2020_01_16_19_41_46.pdf

2) 2019_12_13_15_24_35.pdf 32) 2020_01_17_16_23_45.pdf

3) 2019_12_13_16_58_02.pdf 33) 2020_01_17_16_39_22.pdf

4) 2019_12_13_17_04_24.pdf 34) 2020_01_17_16_45_14.pdf

5) 2019_12_13_17_05_37.pdf 35) 2020_01_17_16_51_18.pdf

6) 2019_12_14_11_06_16.pdf 36) 2020_01_19_16_01_31.pdf

7) 2019_12_16_16_56_58.pdf 37) 2020_01_22_16_28_25.pdf

8) 2019_12_18_02_55_49.pdf 38) 2020_01_22_18_44_52.pdf

9) 2019_12_18_12_12_16.pdf 39) 2020_01_23_07_21_42.pdf

10) 2019_12_18_12_57_27.pdf 40) 2020_01_23_09_19_41.pdf

11) 2019_12_18_14_04_35.pdf 41) 2020_01_23_09_40_35.pdf

12) 2019_12_18_14_12_23.pdf 42) 2020_01_23_10_54_41.pdf

13) 2019_12_18_14_42_06.pdf 43) 2020_01_23_10_58_33.pdf

14) 2019_12_18_15_14_03.pdf 44) 2020_01_23_11_19_43.pdf

15) 2019_12_19_16_22_36.pdf 45) 2020_01_23_11_29_40.pdf

16) 2020_01_13_13_05_02.pdf 46) 2020_01_26_22_47_08.pdf

17) 2020_01_13_13_26_46.pdf 47) 2020_01_26_22_45_37.pdf

18) 2020_01_13_13_39_23.pdf 48) 2020_01_27_19_04_50.pdf

19) 2020_01_13_17_16_53.pdf 49) 2020_01_30_11_34_32.pdf

20) 2020_01_13_18_05_01.pdf 50) 2020_01_30_11_34_33.pdf

21) 2020_01_14_15_49_07.pdf 51) 2020_01_30_12_03_36.pdf

22) 2020_01_14_15_55_27.pdf 52) 2020_01_30_13_04_55.pdf

23) 2020_01_14_16_24_06.pdf 53) 2020_01_30_13_06_10.pdf

24) 2020_01_14_17_37_03.pdf 54) 2020_02_04_12_05_21.pdf

25) 2020_01_14_19_46_34.pdf 55) 2020_02_04_12_53_05.pdf

26) 2020_01_14_23_55_57.pdf 56) 2020_02_04_16_21_41.pdf

27) 2020_01_15_07_49_00.pdf 57) 2020_02_05_10_24_31.pdf

28) 2020_01_15_07_50_51.pdf 58) 2020_02_06_08_19_01.pdf

29) 2020_01_15_07_51_56.pdf 59) 2020_02_06_09_56_51.pdf

30) 2020_01_16_18_09_26.pdf 60) 2020_02_07_14_10_16.pdf

61) 2020_02_07_14_10_56.pdf 99) HMS-000203–HMS-000205

62) 2020_02_07_16_11_26.pdf 100) HMS-000206–HMS-000208

63) 2020_02_07_16_19_05.pdf 101) HMS-000209–HMS-000249

64) 2020_02_07_16_47_19.pdf 102) HMS-000250–HMS-000253

65) 2020_02_10_14_38_15.pdf 103) HMS-000254–HMS-000257

66) 2020_02_10_17_48_35.pdf 104) HMS-000258–HMS-000261

67) 2020_02_12_11_58_58.pdf 105) HMS-000262–HMS-000555

68) 2020_02_12_11_59_15.pdf 106) HMS-000556–HMS-000557

69) 2020_02_13_17_35_37.pdf 107) HMS-000558

70) 2020_02_18_10_57_43.pdf 108) HMS-000559–HMS-000592

71) 2020_02_20_16_10_20.pdf 109) HMS-000593–HMS-000594

72) 2020_02_20_16_16_24.pdf 110) HMS-000595–HMS-000628

73) 2020_02_27_15_07_59.pdf 111) HMS-000629–HMS-000630

74) 2020_04_07_11_31_00.pdf 112) HMS-000631–HMS-000633

75) 2020_05_01_14_25_10.pdf 113) HMS-000634–HMS-000637

76) 2020_05_01_14_33_41.pdf 114) HMS-000638–HMS-000671

77) 2020_05_01_17_12_49.pdf 115) HMS-000672

78) 2020_05_01_23_09_28.pdf 116) HMS-000673–HMS-000708

79) 2020_05_04_09_49_02.pdf 117) HMS-000710

80) 2020_05_04_12_24_38.pdf 118) HMS-000723–HMS-000724

81) 2020_05_04_12_26_39.pdf 119) HMS-000733–HMS-000736

82) 2020_05_04_12_28_31.pdf 120) HMS-000737–HMS-000739

83) 2020_05_07_10_48_18.pdf 121) HMS-000740–HMS-000741

84) 2020_05_07_11_23_40.pdf 122) HMS-000742

85) 2020_05_07_11_24_31.pdf 123) HMS-000743–HMS-000744

86) 2020_05_07_17_02_24.pdf 124) HMS-000812–HMS-000813

87) 2020_05_11_12_53_48.pdf 125) HMS-000814

88) 2020_05_12_10_26_15.pdf 126) HMS-000817–HMS-000818

89) 2020_05_12_17_19_04.pdf 127) HMS-000819–HMS-000820

90) 2020_05_14_11_42_01.pdf 128) HMS-000821–HMS-000823

91) 2020_05_15_10_13_45.pdf 129) HMS-000824–HMS-000831

92) 2020_05_15_16_12_26.pdf 130) HMS-000832–HMS-000833

93) HMS-000088–HMS-000112 131) HMS-000834–HMS-000839

94) HMS-000113 132) HMS-000840–HMS-000842

95) HMS-000114–HMS-000193 133) HMS-000843–HMS-000846

96) HMS-000194–HMS-000198 134) HMS-000847

97) HMS-000199–HMS-000200 135) HMS-000848–HMS-000860

98) HMS-000201–HMS-000202 136) HMS-000861–HMS-000865

137) HMS-000866–HMS-000914 160) HMS-001067–HMS-001076

138) HMS-000915–HMS-000923 161) HMS-001077–HMS-001080

139) HMS-000924 162) HMS-001081–HMS-001082

140) HMS-000925 163) HMS-001120–HMS-001129

141) HMS-000927–HMS-000928 164) HMS-001130

142) HMS-000929 165) HMS-001133–HMS-001161

143) HMS-000930 166) HMS-001162–HMS-001194

144) HMS-000931–HMS-000933 167) HMS-001195–HMS-001197

145) HMS-000934–HMS-000935 168) HMS-001198

146) HMS-000939–HMS-000941 169) HMS-001201–HMS-001202

147) HMS-000942–HMS-000945 170) HMS-001203–HMS-001204

148) HMS-000946–HMS-000948 171) HMS-001205–HMS-001220

149) HMS-000985–HMS-000997 172) HMS-001221–HMS-001222

150) HMS-000998–HMS-001007 173) HMS-001223–HMS-001251

151) HMS-001008–HMS-001012 174) HMS-001252–HMS-001253

152) HMS-001013–HMS-001016 175) HMS-001254–HMS-001281

153) HMS-001017–HMS-001020 176) HMS-001282–HMS-001298

154) HMS-001021–HMS-001022 177) HMS-001299–HMS-001301

155) HMS-001023–HMS-001029 178) HMS-001302–HMS-001306

156) HMS-001030–HMS-001048 179) HMS-001307–HMS-001310

157) HMS-001057–HMS-001061 180) HMS-001311–HMS-001315

158) HMS-001062–HMS-001064 181) HMS-001316–HMS-001319

159) HMS-001065–HMS-001066 182) HMS-001326–HMS-001330

J. Privileged Documents

Notwithstanding the foregoing, we find that some of the

documents presented for in camera review have been properly designated

as privileged attorney-client communications or protected work product,

and that the applicable attorney-client privilege or work-product

protection has not been waived.

1. Eckert and HMS Attorney-Client Privileged Documents

Based on our in camera review, the following documents are

protected by attorney-client privilege and are properly withheld from

disclosure. These generally include three categories of documents:

(1) attorney-client privileged communications regarding legislative,

lobbying, or public relations issues in which the primary or predominant

purpose of the communication was to procure or provide legal advice;

(2) attorney-client privileged communications regarding the POM

Commonwealth Court cases exchanged before efforts by Parx to

intervene as a party or amicus curiae were undertaken; and (3) attorney-

client privileged communications regarding other subjects, including

other litigation. The defendant’s objections are sustained, and the

following documents shall be withheld from production:

1) 2017_02_14_15_34_42.pdf 13) 2019_03_01_11_06_07.pdf

2) 2017_06_20_00_02_56.pdf 14) 2019_04_25_17_06_08.pdf

3) 2017_07_06_11_46_57.pdf 15) 2019_04_26_11_47_31.pdf

4) 2018_03_20_10_09_35.pdf 16) 2019_05_06_12_02_53.pdf

5) 2018_03_20_10_12_26.pdf 17) 2019_05_06_14_48_53.pdf

6) 2018_05_09_16_22_26.pdf 18) 2019_05_06_15_43_12.pdf

7) 2018_05_10_13_11_40.pdf 19) 2019_05_09_22_23_18.pdf

8) 2018_11_27_14_04_27.pdf 20) 2019_05_10_09_31_19.pdf

9) 2018_11_28_15_13_42.pdf 21) 2019_06_18_16_24_48.pdf

10) 2019_01_24_16_07_34.pdf 22) 2019_06_18_16_45_29.pdf

11) 2019_02_13_12_07_54.pdf 23) 2019_07_25_14_26_00.pdf

12) 2019_03_01_11_01_08.pdf 24) 2019_07_25_15_04_52.pdf

25) 2019_08_14_12_40_15.pdf 34) 2019_12_10_13_38_10.pdf

26) 2019_08_16_10_16_13.pdf 35) 2019_12_10_22_33_45.pdf

27) 2019_08_16_10_35_13.pdf 36) 2019_12_31_12_01_32.pdf

28) 2019_08_16_10_42_44.pdf 37) 2020_01_06_10_18_00.pdf

29) 2019_11_20_09_28_23.pdf 38) 2020_01_06_13_06_32.pdf

30) 2019_11_20_09_43_21.pdf 39) 2020_02_09_12_38_53.pdf

31) 2019_11_20_10_19_08.pdf 40) 2020_02_10_09_56_26.pdf

32) 2019_11_20_10_39_57.pdf 41) HMS-000711–HMS-000713

33) 2019_11_20_11_09_38.pdf

2. Parx Privileged Documents

Due to its document retention policies, Parx has identified few

documents from its own records responsive to the subpoena served upon

it by POM. In addition to adopting the objections asserted by Eckert in

its privilege log with respect to documents in Eckert’s possession, Parx

has served a privilege log identifying four email messages and

interposing objections to disclosure based on attorney-client privilege and

work-product protection. (See Doc. 49, at 8.) Parx has provided the court

with copies of these emails for in camera review, with each page

sequentially Bates-labeled PARX000001 through PARX000025. Based on

our in camera review, all of these documents are protected by attorney-

client privilege and are properly withheld from disclosure. With respect

to these documents, Parx’s objections are sustained, and the documents

Bates-labeled PARX000001 through PARX000025 shall be withheld from

production.

3. Documents Protected by the Work-Product Doctrine

Based on our in camera review, the following documents are not

protected by attorney-client privilege,14 but they are properly withheld

from disclosure under the work-product doctrine, as they were prepared

in anticipation of this litigation and their disclosure to HMS or Parx and

their respective agents did not waive work-product protection. The

objections by Eckert, HMS, and Parx are sustained, and the following

documents shall be withheld from production:

1) 2020_02_19_18_01_55.pdf

2) 2020_02_19_18_02_22.pdf

3) 2020_02_19_18_21_19.pdf

4) 2020_02_19_18_55_53.pdf

5) 2020_02_20_11_05_59.pdf

6) 2020_02_21_14_56_37.pdf

7) 2020_02_21_15_12_13.pdf

8) HMS-001320–HMS-001321

9) HMS-001322

10) HMS-001324

14 These documents are a string of emails in which Stewart advised

Parx of the instant federal lawsuit brought by POM against Eckert and

provided additional background information.

IV. CONCLUSION

For the foregoing reasons, each of the four motions before us will

be granted in part and denied in part. With respect to documents

identified above as duplicative of other documents or protected by

attorney-client privilege or the work-product doctrine, the objections of

Eckert, HMS, and Parx are sustained and said documents shall be

withheld from production. With respect to documents identified above as

non-privileged and non-protected communications with government

attorneys, transmittal messages, business communications, and lobbying

or public affairs communications, or as communications for which any

attorney-client privilege has been waived or judicially estopped and

work-product doctrine does not apply, the objections of Eckert, HMS, and

Parx are overruled and said documents shall be produced to the plaintiff,

subject to any redactions also described above.

An appropriate order follows.

Dated: February 16, 2021 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge