The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
:
JOHN STEVENS,
:
Plaintiff CIVIL ACTION NO. 3:20-1911
:
v. (JUDGE MANNION)
:
JESSI SULLUM, et al.,
:
Defendants
:
MEMORANDUM
Before the court is an appeal filed by defendants District Attorney Mark
Powell and Assistant District Attorney Judy Price (“DA Defendants”) of Judge
Mehalchick’s discovery order granting Plaintiff’s request for disclosure of a
memorandum drafted by DA Powell (the “Powell Memo” or “Memo”). (Doc.
95). The appeal requires this court to determine whether Judge Mehalchick
clearly erred in finding the work product doctrine inapplicable to the Powell
Memo. A well-established exception to the work product doctrine provides
that if the attorney’s conduct is a central issue in the case, the work-product
doctrine does not apply. The Powell Memo was drafted by DA Powell whose
alleged conduct is a central issue in this case. Therefore, the work product
protection does not apply to the Powell Memo. The court will thus AFFIRM
Judge Mehalchick’s order and DENY the appeal.
I. BACKGROUND1
At issue in DA Defendants’ appeal is the applicability of the work
product doctrine to a memorandum authored by Defendant Powell in the
context of the criminal prosecution of Plaintiff underlying this civil rights action
(the “Powell Memo”). (Doc. 96). The Powell Memo is responsive to Plaintiff’s
document subpoena served on third-party Paul Lyon of Lyon Strategic
Communications, LLC (“Lyon”). While Judge Mehalchick’s order also
granted Plaintiff’s request for production of an email containing a statute that
was marked up by Defendant Powell, DA Defendants’ only appeal the order
with respect to the Powell Memo. (Docs. 95, 96). After conducting a
discovery conference call and reviewing the documents in camera, Judge
Mehalchick issued an order granting Plaintiff’s request for production of the
documents. (Docs. 92 & 93). DA Defendants appealed that order and filed a
supporting brief. (Doc. 96). Plaintiff filed a brief in opposition, (Doc. 98), to
which DA Defendants replied, (Doc. 103). This court held oral argument on
the appeal, after which the court ordered supplemental briefing on the work
product privilege and deliberative process privilege as applied to the Powell
Memo. The parties filed their briefs shortly thereafter. (Docs. 123, 138, 145).
1 Since Judge Mehalchick stated the procedural and factual
background of this case in her Memorandum, it is not fully repeated herein.
(See Doc. 92).
II. STANDARD OF REVIEW
When a United States Magistrate Judge decides a non-dispositive
motion, the district court sitting on appeal may only reverse the judge’s
decision if the ruling is “clearly erroneous or contrary to law.” 28 U.S.C.
§636(b)(1)(A); see Fed. R. Civ. P. 72(a) (reiterating the statutory standard);
M.D. Pa. L. R. 72.2 (same). A ruling is clearly erroneous when “the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” PA Prison Soc. v. Cortes, 622 F.3d 215, 231
(3d Cir. 2010) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573
(1985)). This means the court must accept the judge’s factual determination
unless that determination “either (1) is completely devoid of minimum
evidentiary support displaying some hue of credibility, or (2) bears no rational
relationship to the supportive evidentiary data[.]” Haines, 975 F.2d at 92
(citing Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972)). A finding is
contrary to law if the magistrate judge misinterpreted or misapplied
applicable law. Alarmax Distributors, Inc. v. Honeywell Int'l Inc., No.
2:14CV1527, 2015 WL 12756857, at *1 (W.D. Pa. Nov. 24, 2015).
Findings supported by the record are not clearly erroneous, even if the
record could support a different conclusion. Anderson, 470 U.S. at 573–74
(“Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.”). Along the same lines,
the court is not entitled to reverse Judge Mehalchick’s Order simply because
it would have decided the case differently. PA Prison Soc., 622 F.3d at 231
(citing Anderson, 470 U.S. at 573). Judge Mehalchick’s ruling, then, is
accorded significant deference. Since DA Defendants filed this appeal,
“[they] must clear a high hurdle to compel this court to overturn a magistrate
judge’s decision of a non-dispositive pretrial matter.” Nothstein v. USA
Cycling, 337 F.R.D. 375, 384 (E.D. Pa. 2020).
III. DISCUSSION
A. Work Product Doctrine
The work product doctrine derives from Rule 26(b)(3) of the Federal
Rules of Civil Procedure and the Supreme Court’s decision in Hickman v.
Taylor, 329 U.S. 495, 508 (1947), and precludes disclosure of documents
and other tangible items which were (1) created in reasonable anticipation of
litigation by or for a party and (2) prepared primarily for the purpose 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 Elec. Corp. v. Republic of
Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991) (citing Hickman, 329 U.S. at
510–11). The doctrine protects materials “prepared for any litigation or trial
as long as they were prepared by or for a party to the subsequent litigation.”
FTC v. Grolier, Inc., 462 U.S. 19, 25 (1983).
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 In re Cendant Corp. Securities Litigation, 343
F.3d 658, 663 (3d Cir. 2003)).
The burden of demonstrating that a document is protected as work
product rests with the party asserting the doctrine. Conoco Inc. v. U.S. Dep't
of Just., 687 F.2d 724, 730 (3d Cir. 1982). The burden is significant because
privileges “are not lightly created nor expansively construed.” United States
v. Nixon, 418 U.S. 683, 710 (1974). Indeed, the work product doctrine “must
be strictly confined within the narrowest possible limits consistent with the
logic of its principle.” In re Grand Jury Proc., 604 F.2d 798, 802 (3d Cir. 1979)
(internal quotation marks and citations omitted).
Here, Judge Mehalchick found, in relevant part, that DA Powell did not
draft the Powell Memo in anticipation of litigation, and thus the Memo was
not entitled to work product protection. Specifically, Judge Mehalchick found
that, rather than drafting “in anticipation of litigation,” DA Powell drafted the
Powell Memo “in anticipation of ceasing criminal prosecution in the
underlying criminal case.” (Doc. 92 at 11) (emphasis in original). DA
Defendants say this was clear error because the Powell Memo consists of
DA Powell’s mental impressions, conclusions, opinions and/or legal theories
pertaining to a then-active criminal prosecution. (Doc. 96). DA Defendants
argue further that DA Powell drafted the Powell Memo in anticipation of a
potential malicious prosecution claim from Plaintiff and in anticipation of
potential ancillary litigation before the Disciplinary Board related to alleged
attorney misconduct discussed in the memorandum. (Doc. 96 & 123).
Plaintiff says Judge Mehalchick was correct in declining work product
protection because the Powell Memo was created in anticipation of
terminating criminal prosecution.
“The question whether a document was prepared in anticipation of
litigation is often a difficult factual matter.” United States v. Rockwell Int'l, 897
F.2d 1255, 1266 (3d Cir. 1990). The relevant inquiry is “whether in light of
the nature of the document and the factual situation in the particular case,
the document can fairly be said to have been prepared or obtained because
of the prospect of litigation.” Martin v. Bally's Park Place Hotel & Casino, 983
F.2d 1252, 1260 (3d Cir. 1993) (citing Rockwell Int'l, 897 F.2d at 1266). As
the Third Circuit explained:
Only by looking to the state of mind of the party preparing the
document . . . can we determine whether this test has been
satisfied. Thus, that person's “unilateral belief” that litigation will
result is the initial focus of the inquiry into whether the report was
prepared “in anticipation of litigation.” The rule is limited,
however, by the requirement that the preparer's anticipation of
litigation be objectively reasonable.
Id. “Even where the reasonable anticipation of litigation is established,
whether the document comes within the purview of the work-product
[doctrine] still depends primarily on the reason or purpose for the document
production.” In re Gabapentin Patent Litig., 214 F.R.D. 178, 184 (D.N.J.
2003). For example, the doctrine does not apply to “[m]aterials assembled in
the ordinary course of business, or pursuant to public requirements unrelated
to litigation, or for other nonlitigation purposes” even if those materials are
later useful in litigation. Martin, 983 F.2d at 1260.
As the reader can probably glean from the summary of the law and
arguments thus far, the issue presented by this appeal is a difficult one. The
question of the work product doctrine’s application to the Powell Memo
contains both a thorny factual issue—i.e., DA Powell’s state of mind when
drafting the Memo—and what seems to be a novel legal issue—i.e., whether
drafting a memorandum in anticipation of ceasing criminal prosecution is
synonymous with drafting “in anticipation of litigation.” The novelty of the
latter legal issue is demonstrated by the parties’ fruitless—but no doubt
tireless—search for analogous case law. (See Doc. 123, DA Defendants’
Supplemental Brief) (“there is no case directly on point”); (Doc. 138, Plaintiff’s
Supplemental Brief) (“Plaintiff was unable to find a case directly on point”).
All told, the obscurity that remains after multiple briefs, supplemental
briefs, and over an hour of oral argument likely demonstrates DA
Defendants, as appellants, have not shown clear error in Judge Mehalchick’s
thorough, well-reasoned opinion. Regardless, the court need not delve into
the thorny factual issue regarding DA Powell’s state of mind, nor the novel
legal issue described above because, even if DA Powell drafted the Powell
Memo in anticipation of litigation, a well-established exception to the work
product doctrine applies on this record.
As important as the work product doctrine is to the proper functioning
of the adversarial system, it is not without judicious exceptions. One such
exception is when the work product concerns the activities of counsel that
are directly in issue in the litigation. Indeed, “[m]any 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.” Pace-O-Matic, Inc., v. Eckert
Seamans Cherin & Mellott, LLC, No. 1:20-CV-00292, 2021 WL 5330641, at
*8 (M.D. Pa. Nov. 16, 2021) (collecting cases); see also 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.”). For
example, the prosecutor and law-enforcement defendants in Bolus v.
Carnicella could not shield their opinion work product from disclosure
because their mental impressions and legal strategy in the underlying
criminal prosecution “form[ed] the heart of Plaintiffs’ case.”2
This exception makes sense when we remember the purpose of the
work product doctrine: to “promote[] 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 1428. This purpose is not
2 Bolus v. Carnicella, No. 4:15-CV-01062, 2020 WL 6531007, at *8
(M.D. Pa. Nov. 5, 2020).
implicated where, as here, the attorney’s work product is directly at issue in
this case and may be used against him rather than his clients.
Here, as DA Defendants articulate in their brief, a fair reading of the
Powell Memo shows “he is engaged in an analysis of the criminal case by
evaluating facts and witnesses in contemplation of the prosecution of the
Plaintiff,” and the Memo “was written during the pendency of a criminal action
in which [DA Powell] was analyzing the viability of an active prosecution[.]”
(Doc. 96 at 7). DA Powell’s analysis of the evidence in and viability of the
criminal prosecution of Plaintiff is directly at issue in this case. Plaintiff’s
remaining claims against DA Powell include malicious prosecution under 42
U.S.C. §1983. A key element related to that claim is whether DA Powell
“acted maliciously or for a purpose other than bringing the plaintiff to justice”
in initiating prosecution and continuing to prosecute Plaintiff in the underlying
criminal case. For example, Plaintiff alleges in his amended complaint that
DA Powell manufactured a false narrative in regard to Plaintiff, generated
false evidence against him, and pressured a subordinate to continue
prosecuting Plaintiff. (See, e.g., Doc. 9 at 10). The Powell Memo sheds light
on DA Powell’s intent and motivations in continuing to pursue the criminal
prosecution of Plaintiff. To be sure, DA Powell’s mental impressions,
conclusions, opinions, or legal theories contained in the Powell Memo go to
the heart of Plaintiff’s claims against him. Therefore, these facts warrant
application of the narrow exception to the work product doctrine for the
information for which protection is sought is directly at issue.3
B. Deliberative Process Privilege
The deliberative process privilege permits the government to withhold
documents containing “confidential deliberations of law or policymaking,
reflecting opinions, recommendations or advice.” Redland Soccer Club, Inc.
v. Dep't of Army of U.S., 55 F.3d 827, 853 (3d Cir. 1995) (citation omitted).
“[T]he ultimate purpose of this long-recognized privilege is to prevent injury
to the quality of agency decisions.” Id. “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.’” Id. Like most privileges, the deliberative process
privilege can be waived. “Where an authorized disclosure is voluntarily made
to a non-[governmental] party, the government waives any claim that the
information is exempt from disclosure under the deliberative process
privilege.” Shell Oil Co. v. I.R.S., 772 F.Supp. 202, 211 (D. Del. 1991); see
also Fla. House of Representatives v. U.S. Dep't of Com., 961 F.2d 941, 946
3 The court appreciates the parties’ supplemental briefing on the issue
of waiver of the work product doctrine but need not reach the issue since the
court finds the above-articulated exception applies.
(11th Cir. 1992) (citing Shell Oil). However, the deliberative process privilege
is not waived if “the disclosure was inadvertent, and the [government] [takes]
reasonable steps in preventing and rectifying the disclosure.” Bayliss v. New
Jersey State Police, 622 F. App'x 182, 186 (3d Cir. 2015) (citing Fed. R. Evid.
502(b)).
Here, even if the deliberative process privilege were to apply, DA
Powell waived the privilege by voluntarily disclosing the Powell Memo. It is
undisputed that DA Powell voluntarily disclosed the Powell Memo to Paul
Lyon, a non-governmental third-party, when he attached the memorandum
to an email to Mr. Lyon seeking public relations advice. DA Defendants do
not allege this disclosure was inadvertent, nor that they took reasonable
steps in preventing and rectifying the disclosure. In fact, DA Defendants do
not respond whatsoever to Plaintiff’s argument that the deliberative process
privilege was waived. Thus, the court finds the deliberative process privilege
does not prevent disclosure of the Powell Memo because, even if applicable,
it was waived by voluntary disclosure.
IV. CONCLUSION
In light of the foregoing, the court will AFFIRM Judge Mehalchick’s
discovery order requiring disclosure of the Powell Memo and DENY DA
Defendants appeal thereof. An appropriate order follows.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: April 25, 2023
20-1911-06