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.

This is one of a series of discovery disputes that the parties have

been unable to resolve without a court ruling. ,

, No. 20-cv-00292, 2021 WL

602733 (M.D. Pa. Feb. 16, 2021), , 2021 WL

1264323 (M.D. Pa. Apr. 6, 2021), , 2021 WL 5330641 (M.D. Pa.

Nov. 16, 2021), , 2022 WL 2441556 (M.D. Pa. July 5, 2022), , No.

22-2445, 2023 WL 7491133 (3d Cir. Nov. 13, 2023).

In response to Rule 34 requests for production served by POM,

Eckert produced a 116-page privilege log describing 1,010 responsive

email messages withheld from disclosure, including the legal basis for

withholding each document. Based on the information set forth in that

privilege log, POM filed a letter challenging Eckert’s assertion of

attorney-client privilege and work-product protection with respect to 120

of these documents. (Doc. 295.) Eckert filed a responsive letter. (Doc. 298.)

Upon review of these letters, the presiding United States district

judge granted the plaintiff’s request for an review of the

documents at issue. She directed Eckert to submit copies of the

challenged documents for review. She also directed POM to file

a reply letter. (Doc. 300.)

As directed, POM filed its reply letter (Doc. 304), and Eckert

submitted a tabbed binder containing copies of the 120 challenged

documents for review ( Doc. 305). Shortly thereafter, the

discovery dispute was referred to the undersigned United States

magistrate judge for resolution. (Doc. 313.)

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.

, No. 418 MD 2018 (Pa. Commw. Ct. filed June 8, 2018). About

one month later, POM filed a second lawsuit concerning its skill games

in the Commonwealth Court against the Pennsylvania State Police.

, No. 503 MD 2018 (Pa. Commw. Ct. filed

July 20, 2018). On November 20, 2019, the Commonwealth Court issued

an opinion in the first case denying an application for summary relief by

the state department of revenue, which had the effect of placing both

actions on an active litigation schedule.

, 221 A.3d 717 (Pa. Commw. Ct. 2019) (denying state

department of revenue’s motion for summary relief in Case No. 418);

, No. 503 M.D. 2018, 2019 WL

6173719 (Pa. Commw. Ct. Nov. 20, 2019) (citing Case No. 418 opinion in

denying state police motion for summary relief in Case No. 503).

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 skill 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

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

14, 2020, the casinos filed applications to intervene as parties in both of

POM’s Commonwealth Court cases.

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.

In connection with an earlier discovery dispute, we conducted an

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

cases. It is our understanding that he and his firm represent another

casino group that joined Parx in filing the amicus brief and, later, the

initial motions to intervene.

review of other documents responsive to POM’s discovery

requests and third-party subpoenas. Among the documents produced for

that earlier inspection were email messages and SMS text

messages concerning the POM Commonwealth Court litigation,

exchanged between Stewart and other Eckert attorneys on the one hand

and other attorneys or corporate representatives for Parx on the other

hand. These communications all concerned efforts by Parx to participate

in the Commonwealth Court litigation—first as an amicus curiae with

respect to a motion by POM for preliminary injunctive relief, and then

later as an intervenor seeking full party status, but at all times in direct

opposition to the interests of the petitioner, POM, which was also a client

of Eckert at the time.

Our initial February 2021 ruling concerned several categories of

documents withheld from production, two of which are relevant to the

current dispute. One category was transmittal messages, which “are not

privileged unless they reveal the client’s confidences.” ,

2021 WL 602733, at *8. A second category was communications

concerning legislative, lobbying, or public relations services, which are

generally not privileged. at *9–*10. Eckert, Parx, and HMS

appealed a portion of our initial ruling concerning another category of

documents, as to which we had found Eckert, Parx, and HMS judicially

estopped from asserting attorney-client privilege. But Eckert, Parx, and

HMS did not challenge our ruling with respect to any other categories of

documents, including our rulings with respect to transmittal messages

and communications predominantly concerned with legislative, lobbying,

or public relations services. , 2021 WL 1264323, at *2;

, 2022 WL 2441556, at *2; , 2021 WL

5330641, at *1.

Meanwhile, HMS-attorney McKeon filed praecipes for withdrawal

of appearance in both Commonwealth Court cases on December 13, 2021.

On January 11, 2022, the Commonwealth Court denied previously filed

motions by POM to disqualify McKeon from both cases on the ground that

his recently filed praecipes for withdrawal rendered the motions moot,

and it directed another HMS attorney of record and the firm itself to

withdraw their appearances as well, which they did a few days later. The

state appellate court also struck the proposed intervenors’ amicus brief

in Case No. 503, and it struck their applications to intervene in both

cases, but without prejudice to refiling similar applications to intervene

prepared by counsel a conflict of interest. In June 2022, now

represented by other counsel of record, Parx and other casinos filed

renewed applications to intervene in both Commonwealth Court cases.

The two Commonwealth Court cases brought by POM involved

different defendants, but essentially identical legal issues. In February

2023, POM appears to have opted to pursue its claims exclusively in Case

No. 503, filing a praecipe of discontinuance in Case No. 418. Both

defendants (the Pennsylvania Department of Revenue and the City of

Philadelphia) and the proposed intervenors (Parx and other casino

operators) filed appeals to the Supreme Court of Pennsylvania, each of

which was ultimately quashed for lack of jurisdiction because the state

department of revenue’s counterclaim against POM remained pending,

notwithstanding POM’s discontinuance of its own claims.

, Docket Nos. 10 EAP 2023, 11 EAP 2023,

12 EAP 2023 (Pa. quashed July 21, 2023) (per curiam).

Meanwhile, the other Commonwealth Court case, Case No. 503,

moved forward, and a hearing was held on the casinos’ application to

intervene on July 19, 2023. Following this hearing and some additional

briefing by the parties and the proposed intervenors, the Commonwealth

Court denied the casinos’ applications to intervene on August 14, 2023.

The Commonwealth Court also entered a stay of proceedings in both of

the cases involving POM pending resolution of related appellate issues

in two other Commonwealth Court cases involving skill games, to which

POM was not a party: , No. 707

CD 2023 (Pa. Commw. Ct. filed Apr. 21, 2023), and

, No. 761 CD 2023 (Pa. Commw. Ct. filed Mar. 8,

2023).2 Parx and other casino operators have filed an appeal to the

2 On November 14, 2023, the Commonwealth Court, sitting en banc,

entered a decision affirming a trial court order granting motions to return

property and to suppress evidence in criminal proceedings involving the

seizure of four skill game machines from a retail establishment.

, No. 761 CD 2023, 2023 WL 7509657

(Pa. Commw. Ct. Nov. 14, 2023) (en banc), , No.

607 MAL 2023 (Pa. filed Nov. 15, 2023). Although the trial court’s order

had found that the seized games were legal games of skill, the

Commonwealth’s appeal and the appellate court’s decision in this case

were limited to jurisdictional and procedural issues—the appellate court

noted that the Commonwealth had failed to preserve any substantive

challenges to the trial court’s order with respect to the legality of skill

games. at *3. On November 15, 2023, the Commonwealth filed a

petition for allowance of appeal in the Supreme Court of Pennsylvania.

, No. 607 MAL 2023 (Pa. filed

Nov. 15, 2023). The case remains pending before the state supreme court.

Yesterday, the Commonwealth Court, sitting en banc, entered a

decision affirming a trial court order granting a petition to return

property filed in connection with an administrative enforcement seizure

of three POM-developed skill game machines from a liquor-licensed

Supreme Court of Pennsylvania from the Commonwealth Court order

denying their application to intervene, which remains pending before the

state supreme court. , No. 28 EAP

2023 (Pa. filed Sept. 12, 2023).

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.

Fed. R. Evid. 501; , 839 F.2d 958,

965 (3d Cir. 1988). 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

restaurant. , No. 707 CD 2023,

2023 WL 8264547 (Pa. Commw. Ct. Nov. 30, 2023) (en banc). In this case,

the appellate court squarely addressed the substantive issue of whether

POM’s skill games were prohibited “slot machines” or gambling devices,

expressly finding that the POM skill games were neither slot machines,

at *4–*6, nor gambling devices, at *6–*10. The Commonwealth’s

time for seeking a discretionary appeal to the state supreme court has

not yet expired with respect to yesterday’s appellate decision, and news

reports indicate that the Commonwealth intends to seek review in the

Supreme Court of Pennsylvania. , Charles Thompson,

,

Harrisburg Patriot-News, Dec. 1, 2023, 2023 WLNR 40809233.

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.”

, 951 F.2d 1414, 1423 (3d Cir. 1991);

, 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.’”

, 493 F.3d 345, 359 (3d Cir. 2007) (quoting

§ 68 (2000)

[hereinafter, “ ”]). “‘Privileged persons’ include

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

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

(citing § 70). “A communication is only

privileged if it is made ‘in confidence.’” at 361 (citing

§ 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.” 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.”

, 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.” , 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.”

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

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.’”

, 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.

, 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.

, 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.” , 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,” , 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.

, 268 F.R.D. at 118;

§ 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.’” , 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.’” , 237 F.R.D. at 381 (quoting , 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 into 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. , 951 F.2d at 1428;

, 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.

, 214 F.R.D. 432, 442 (E.D.

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

2013 WL 21911333 (5th Cir. July 25, 2003)

(mem.).

III. DISCUSSION

A. Email Strings

The documents at issue here consist entirely of email messages,

some with attachments. 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.”

, 254 F.R.D. 238, 240 (E.D. Pa. 2008);

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

, 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.

, 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.” , 254 F.R.D. at 240–41;

, 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 .”).

The Eckert privilege log before us appears to be defective. It

describes the author, the recipients, the subject line, and the time and

date for the in each email string produced for

review. While prior email messages within a string have occasionally

been separately logged and produced for review, many are

clearly not otherwise described in the privilege log. This can be

problematic when those prior email messages involve additional

recipients not identified in the privilege log description of the top email

message. , , 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 Eckert privilege log is moot, however, as the most appropriate

remedy in our view would have been inspection of a select

sample of the withheld documents, which we have already done.

, 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)).3

B. State-Law Work-Product Protection

In addition to attorney-client privilege, virtually every document

listed on Eckert’s 116-page privilege log is marked as being withheld on

3 We note that an alternative remedy for such a defective privilege

log is to deem the inadequate log an outright of any attorney-

client privilege that might otherwise apply. ;

, 309 F.R.D. 226, 235 (S.D. W. Va. 2015). But we do not

find Eckert’s conduct in this instance merits such a severe sanction.

the basis of work-product protection.4 Most of these documents are

marked as being protected under the work-product protection rule,

Pa. R. Civ. P. 4003.3, with no related litigation identified as the basis for

protection from disclosure. Whereas the federal work-product rule

shields materials from disclosure only if they are prepared

, the Pennsylvania state work-product rule provides

significantly broader protection from disclosure, protecting “the mental

impressions and processes of an attorney acting on behalf of a client,

.” , 210 A.3d 966, 976 (Pa. 2019)

(emphasis added); at 976 n.6 (discussing distinctions between

the language of Pa. R. Civ. P. 4003.3 and the language of Fed. R. Civ. P.

26(b)(3)(A)). As we have noted above, it is the work-product

standard—not the state rule—that controls the proper scope of discovery

in a federal diversity case such as this. , 839 F.2d at

966; , 809 F. Supp. at 364 n.10;

4 Among the purportedly privileged documents submitted for

review, we have identified only one for which work-product

protection is not asserted by Eckert: PRIV-00597 (Control No. 801161).

With respect to this document, Eckert has asserted attorney-client

privilege only.

, 57 Fed. App’x 58, 60 (3d Cir.

2003). Thus, with respect to all documents withheld from production on

state-law work-product protection grounds, Eckert’s objections to

disclosure are overruled.5

5 These documents include: PRIV-00036 (Control No. 600512);

PRIV-00040 (Control No. 600332); PRIV-00056 (Control No. 1900242);

PRIV-00057 (Control No. 502252); PRIV-00062 (Control No. 600848);

PRIV-00065 (Control No. 500116); PRIV-00066 (Control No. 600637);

PRIV-00067 (Control No. 1900210); PRIV-00068 (Control No. 1900237);

PRIV 00069 (Control No. 1900231); PRIV-00071 (Control No. 1900229);

PRIV-00072 (Control No. 500973); PRIV-00072 (Control No. 500242);

PRIV-00075 (Control No. 1900239); PRIV-00076 (Control No. 304115);

PRIV-00077 (Control No. 1900168); PRIV-00079 (Control No. 304194);

PRIV-00081 (Control No. 501149); PRIV-00084 (Control No. 1900216);

PRIV-00089 (Control No. 304526); PRIV-00090 (Control No. 800811);

PRIV-00092 (Control No. 304193); PRIV-00101 (Control No. 2000181);

PRIV-00102 (Control No. 800483); PRIV-00106 (Control No. 304653);

PRIV-00107 (Control No. 400309); PRIV-00108 (Control No. 304428);

PRIV-00175 (Control No. 304601); PRIV-00199 (Control No. 304484);

PRIV-00232 (Control No. 400468); PRIV-00262 (Control No. 304160);

PRIV-00263 (Control No. 1800457); PRIV-00264 (Control No. 304508);

PRIV-00265 (Control No. 1800543); PRIV-00271 (Control No. 304122);

PRIV-00305 (Control No. 900215); PRIV-00308 (Control No. 304159);

PRIV-00321 (Control No. 900706); PRIV-00322 (Control No. 600330);

PRIV-00323 (Control No. 304483); PRIV-00329 (Control No. 304139);

PRIV-00333 (Control No. 1900224); PRIV-00334 (Control No. 304576);

PRIV-00335 (Control No. 304575); PRIV-00493 (Control No. 800930);

PRIV-00495 (Control No. 800305); PRIV-00496 (Control No. 801228);

PRIV-00497 (Control No. 801231); PRIV-00554 (Control No. 1102670);

PRIV-00614 (Control No. 800947); PRIV-00651 (Control No. 801264);

PRIV-00653 (Control No. 1102545); PRIV-00654 (Control No. 801204);

PRIV-00655 (Control No. 801206); PRIV-00656 (Control No. 8012070;

C. Transmittal Messages

Several of the documents logged by Eckert are mere transmittal

messages to or from attorneys forwarding other messages or documents

PRIV-00657 (Control No. 801205); PRIV-00660 (Control No. 801345);

PRIV-00677 (Control No. 1001314); PRIV-00679 (Control No. 1000448);

PRIV-00684 (Control No. 1000446); PRIV-00685 (Control No. 501131);

PRIV-00692 (Control No. 1001312); PRIV-00701 (Control No. 500660);

PRIV-00703 (Control No. 1001050); PRIV-00711 (Control No. 502250);

PRIV-00722 (Control No. 501421); PRIV-00740 (Control No. 500940);

PRIV-00751 (Control No. 502397); PRIV-00755 (Control No. 400483);

PRIV-00760 (Control No. 402110); PRIV-00761 (Control No. 402019);

PRIV-00762 (Control No. 502333); PRIV-00763 (Control No. 500757);

PRIV-00782 (Control No. 801235); PRIV-00783 (Control No. 1102560);

PRIV-00784 (Control No. 1500588); PRIV-00786 (Control No. 1500798);

PRIV-00787 (Control No. 302906); PRIV-00788 (Control No. 1001628);

PRIV-00804 (Control No. 1001578); PRIV-00806 (Control No. 1001753);

PRIV-00807 (Control No. 1001756); PRIV-00810 (Control No. 1401405);

PRIV-00816 (Control No. 1401278); PRIV-00817 (Control No. 1401350);

PRIV-00830 (Control No. 1500644); PRIV-00832 (Control No. 1500638);

PRIV-00843 (Control No. 302368); PRIV-00874 (Control No. 1401723);

PRIV-00881 (Control No. 1401459); PRIV-00900 (Control No. 303143);

PRIV-00902 (Control No. 1500490); PRIV-00911 (Control No. 302166);

PRIV-00912 (Control No. 303907); PRIV-00913 (Control No. 1500840);

PRIV-00919 (Control No. 302985); PRIV-00935 (Control No. 2000675);

PRIV-00938 (Control No. 1500868); PRIV-00942 (Control No. 1800563);

PRIV-00946 (Control No. 1500479); PRIV-00948 (Control No. 1500835);

PRIV-00949 (Control No. 302621); PRIV-00950 (Control No. 1500447);

PRIV-00958 (Control No. 302301); PRIV-00960 (Control No. 302303);

PRIV-00971 (Control No. 1700641); PRIV-00973 (Control No. 1701132);

PRIV-00987 (Control No. 1400275); PRIV-00988 (Control No. 1103273);

PRIV-00991 (Control No. 304063); PRIV-00996 (Control No. 304259);

PRIV-00998 (Control No. 1900215); and PRIV-01008 (Control No.

301569).

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.”

, 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.

, 193 F.R.D. 201, 214 (D. Del. 2000);

, 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.” , 296 F.R.D.

323, 336 (M.D. Pa. 2013).

PRIV-00668 (Control No. 1600115)6 is one such transmittal

6 This document is found at Tab 1-1 of the binder of purportedly

privileged documents submitted for review. The binder is

divided into three sections (1, 2, and 3) representing the three categories

of withheld documents for which Eckert’s objections to production are

message, sent to an Eckert attorney, Kevin M. Skjoldal, from his

administrative assistant, Denise Kline,7 forwarding a copy of a document

that is not itself privileged or otherwise protected from disclosure.

Specifically, the only attachment to this email transmittal message as

produced for review is a PDF copy of the First Amended

Complaint with exhibits filed , Eckert’s adversary in this case,

and its two co-plaintiffs in

, No. 19-cv-00065 (W.D. Va. filed Dec. 4, 2019), ECF No. 9,

available on that court’s public docket record.8 Accordingly, the objections

to production of PRIV-00668 (Control No. 1600115) on attorney-client

privilege and work-product protection grounds are overruled.

PRIV-00991 (Control No. 304063)9 is another such transmittal

message, sent from Eckert attorney Mark S. Stewart to Eckert attorney

challenged by POM. Within each category, the documents are divided by

numbered tabs, starting at “1” for each category. Thus, “Tab 1-1” refers

to the first numbered tab within category 1.

7 The message itself contains only the assistant’s signature block.

8 Counsel of record for the plaintiffs in the lawsuit

included Anthony F. Troy, who was an attorney in Eckert’s Richmond,

Virginia, office at the time. The litigation sought to enjoin enforcement

action by a local prosecutor with respect to an electronic skill game

terminal manufactured and distributed by POM’s co-plaintiffs, which

operated on software provided by POM.

9 Tab 2-109.

Susan A. Yocum, forwarding an email message from attorney-lobbyist

Sean Schafer10 summarizing and circulating various documents received

by a friendly legislator from pro-skill games lobbyists. The email chain

and attachments were produced to POM in discovery with the

transmittal email message from Stewart to Yocum redacted.11 The brief,

six-word transmittal message does not reveal any client confidences, nor

does it contain the mental impressions of counsel. Accordingly, the

objection to production of PRIV-00991 (Control No. 304063) on attorney-

client privilege grounds is overruled.

Other transmittal messages contain attachments concerning non-

privileged lobbying services, legislative strategy, or policy advice, which

are addressed below. We will note whenever a document also includes a

non-privileged transmittal message.

D. Lobbying Services, Legislative Strategy, and Policy Advice

Most of the documents described on Eckert’s privilege log involve

communications among lawyers concerning lobbying services, legislative

strategy, and policy advice that do not contain or implicate confidential

10 Schafer appears to be a principal of Schafer Government Affairs,

Inc., a firm offering public affairs and government relations services.

11 ECKERT019558–ECKERT019586.

client communications or legal advice communicated to the client.

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.’” , 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.”

, 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.”

, 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.”

, 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.”

, 214 F.R.D. at 445; , 852 F. Supp. at 164.

But “[i]f a lawyer who is also a lobbyist gives 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.” , 214 F.R.D. at 446.

Ultimately, we must look to see whether the primary or predominant

purpose of the communication was to procure , as opposed to

legislative, lobbying, or public relations services.

, 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); , 749 F. Supp. 2d at 165;

, 241 F.R.D. 109, 126, 129 (N.D.N.Y. 2007);

, 214 F.R.D. at 446.

PRIV-00036 (Control No. 600512)12 consists of an email message

from Eckert attorney Kristine Marsilio to Eckert attorney Stewart that

merely summarizes the content of a public meeting by a state legislative

committee. It does not contain any legal analysis or advice. ,

214 F.R.D. at 445; , 852 F. Supp. at 164. Accordingly, the

objection to production of PRIV-00036 (Control No. 600512) on attorney-

client privilege grounds is overruled.

PRIV-00041 (Control No. 600510)13 consists of an email message

sent from Marsilio to Stewart and an attached document, both of which

merely summarize the content of public meetings by two separate state

legislative committees. The email message and attachment do not

contain any legal analysis or advice. , 214 F.R.D. at 445;

, 852 F. Supp. at 164. Eckert has also asserted federal work-

product protection, under Fed. R. Civ. P. 26(b)(3), identifying POM’s

12 Tab 2-1. The first page of this document is a transmittal message.

13 Tab. 2-3.

Commonwealth Court cases as the underlying litigation. But the email

message merely describes a reference to that litigation by a witness at

one of the public meetings; there is nothing in this message and

attachment to suggest that either was prepared in anticipation of

litigation. Accordingly, the objection to production of PRIV-00041

(Control No. 600510) on attorney-client privilege and federal work-

product protection grounds is overruled.

PRIV-000946 (Control No. 1500479)14 is an email message from

Eckert attorney David “Neil” Hittinger to Eckert attorney Stewart that

merely summarizes the content of a public meeting by a state legislative

committee. It does not contain any legal analysis or advice. ,

214 F.R.D. at 445; , 852 F. Supp. at 164. Accordingly, the

objection to production of PRIV-000946 (Control No. 1500479) on

attorney-client privilege grounds is overruled.

PRIV-000948 (Control No. 1500835)15 consists of email messages

exchanged between Eckert attorneys Stewart and Hittinger regarding

Hittinger’s preparation of a document merely summarizing the content

14 Tab 2-100.

15 Tab 2-101.

of a public meeting by a state legislative committee, and a copy of that

document as an attachment. The email chain includes a prior email

message from attorney-lobbyist Richard Gmerek16 to Stewart and nine

executives or in-house attorneys at a non-party casino group, Mohegan

Gaming & Entertainment, which likewise merely summarized the

content of that same public state legislative committee meeting.17 None

of these communications contain legal analysis or advice. ,

214 F.R.D. at 445; , 852 F. Supp. at 164. Accordingly, the

objection to production of PRIV-000948 (Control No. 1500835) on

attorney-client privilege grounds is overruled.

PRIV-00040 (Control No. 600332)18 is a draft legislative

amendment sent to an Eckert attorney, Stewart, from another Eckert

attorney, Tara A. Burns, the author of this draft legislation. In addition

to this draft legislation—which proposed amending 18 Pa. Cons. Stat.

Ann. § 5513 to add a provision permitting municipalities to prohibit video

16 Gmerek appears to be a principal of Gmerek Government

Relations Inc., a firm offering political and government relations services.

17 Eckert’s privilege log mistakenly indicates that privilege is

asserted on behalf of Parx rather than Mohegan.

18 Tab 2-2. The first page of this document is a transmittal message.

gaming terminals at truck stops within their borders—Burns also

attached copies of publicly available state statutes related to the

proposed legislative amendment. The subject matter of this

communication concerns legislative, political, or policy advice only—not

advice—and thus it is not protected by attorney-client privilege.

, 148 F.3d 1100, 1106 (D.C. Cir. 1998) (per curiam) (“[A]dvice

on political, strategic, or policy issues, valuable as it may have been,

would not be shielded from disclosure by the attorney-client privilege.”);

, 136 F.R.D. 421, 426 (E.D.N.C. 1991)

(“If the communication essentially involves the giving of political advice,

then it is not privileged.”). Moreover, there is nothing in the record before

us to suggest that this communication between Eckert attorneys involved

any confidential client information, nor any communication whatsoever

to or from a client. As the Supreme Court of the United States has

observed:

[T]he protective cloak of [the attorney-client] privilege

does not extend to information which an attorney

secures from a witness while acting for his client in

anticipation of litigation. Nor does this privilege

concern the memoranda, briefs, communications and

other writings prepared by counsel for his own use in

prosecuting his client’s case; and it is equally unrelated

to writings which reflect an attorney’s mental

impressions, conclusions, opinions or legal theories.

, 329 U.S. 495, 508 (1947);

, 232 F.R.D. 467, 481–82 (D. Del. 2005)

(attorney-client privilege did not shield inter-attorney communication

“reflect[ing] attorney thought processes”); , 136 F.R.D. at 426–27

(“[M]emoranda or briefs prepared by counsel for his own use in

prosecuting his client’s case which do not reveal information supplied in

confidence by the client, or memoranda which merely summarize the case

law but contain no factual application to the client, are not privileged.”)

(citations omitted);

, No. 91-0067, 1992 WL 57916, at *5 (E.D. Pa. Mar. 17, 1992)

(“[I]n order for the privilege to apply, the communication must be given

incident to a request for, or the rendition of, legal advice. The privilege

does not apply to legal advice unless it could arguably reveal a

confidences. Accordingly, memoranda or briefs prepared by counsel for

his/her own use or memoranda which merely summarize the case law but

contain no factual application to the client are not privileged.”) (cleaned

up); , 889 A.2d 501, 599 (Pa. 2005) (“First and

foremost is the rule that the [attorney-client] privilege applies only to

confidential communications made by the client to the attorney in

connection with the provision of legal services.”); , 861

A.2d 269, 273 (Pa. Super. Ct. 2004) (“In addition to confidential

communications which flow from a client to his or her attorney, we have

held that the attorney-client privilege applies to confidential

communications which flow from an attorney to his or her client to the

extent the communications are based upon confidential facts that the

client disclosed initially to the attorney.”);

, 294 F. Supp. 3d 404, 405 (E.D. Pa. 2018) (draft contracts not

protected by attorney-client privilege).

, 150 F.R.D. 465, 490 (S.D.N.Y. 1993) (“[A] draft

document prepared by an attorney is privileged if it contains information

provided in confidence by the client and subsequently maintained in

confidence. In the absence of such confidential information supplied by

the client, the draft document is not privileged merely because the

attorney prepared it.”). Accordingly, the objection to production of PRIV-

00040 (Control No. 600332) on attorney-client privilege grounds is

overruled.

PRIV-00074 (Control No. 500242)19 and PRIV-00075 (Control No.

1900239)20 consist of email messages exchanged between Eckert

attorneys Stewart, Burns, and Yocum concerning draft electronic skill

game legislation. The first email message, PRIV-00074, also forwards an

email message from Stewart to two Parx executives and attorney-

lobbyists Gmerek and Schafer describing the “gist of the bill.” The

attached draft legislation proposed amending 18 Pa. Cons. Stat. Ann.

§ 5513 to ban electronic skill games altogether. The subject matter of

these communications concerns legislative, political, or policy advice

only—not advice—and thus they are not protected by attorney-

client privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that this

communication involved any confidential client information.

, 329 U.S. at 508; , 232 F.R.D. at 481–82;

, 136 F.R.D. at 426–27; , 1992 WL

57916, at *5; , 889 A.2d at 599; , 861 A.2d at 273;

, 294 F. Supp. 3d at 405.

19 Tab 2-14.

20 Tab 2-15.

, 150 F.R.D. at 490. Accordingly, the objection to production of PRIV-

00074 (Control No. 500242) and PRIV-00075 (Control No. 1900239) on

attorney-client privilege grounds is overruled.

PRIV-00101 (Control No. 800483),21 PRIV-00321 (Control No.

900706),22 PRIV-00322 (Control No. 600330),23 and PRIV-00323 (Control

No. 304483)24 are email messages exchanged between Eckert attorneys

Stewart, Burns, Skjoldal, and Michael McAuliffe Miller, transmitting

and discussing revisions to draft ordinances that would make skill games

a public nuisance in adopting municipalities. One of the email messages

also includes copies of publicly available state statutes related to the

proposed municipal legislation. Another email message includes

comments by Skjoldal indicating that Miller had shared the draft

ordinance with a third-party municipal official, who called Skjoldal to

thank him for sending it to Miller and to ask if he had also drafted a

version rather than prohibiting skill games. The subject

matter of these communications concerns legislative, political, or policy

21 Tab 2-26.

22 Tab 2-41.

23 Tab 2-42.

24 Tab 2-43.

advice only—not advice—and thus they are not protected by

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that these communications involved any confidential client

information, nor any communication whatsoever to or from a client.

, 329 U.S. at 508; , 232 F.R.D. at 481–82;

, 136 F.R.D. at 426–27; , 1992 WL

57916, at *5; , 889 A.2d at 599; , 861 A.2d at 273;

, 294 F. Supp. 3d at 405.

, 150 F.R.D. at 490. Accordingly, the objection to production of PRIV-

00101 (Control No. 800483), PRIV-00321 (Control No. 900706), PRIV-

00322 (Control No. 600330), and PRIV-00323 (Control No. 304483) on

attorney-client privilege grounds is overruled.

PRIV-00189 (Control No. 304484)25 and PRIV-00232 (Control No.

400468)26 are email messages exchanged between Eckert attorneys

Stewart and Burns concerning draft electronic skill games legislation.

The attached draft legislation, authored by Burns and attached to one of

25 Tab 2-32.

26 Tab 2-33.

these emails, proposed amending Title 10 of the Pennsylvania Statutes27

to ban electronic skill games. Burns also attached a copy of a publicly

filed legislative proposal, Senate Bill 710, which likewise sought to

prohibit electronic skill games. The subject matter of this communication

concerns legislative, political, or policy advice only—not advice—

and thus it is not protected by attorney-client privilege. , 148

F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is nothing in the

record before us to suggest that this communication involved any

confidential client information, nor any communication whatsoever to or

from a client. , 329 U.S. at 508; , 232

F.R.D. at 481–82; , 136 F.R.D. at 426–27;

, 1992 WL 57916, at *5; , 889 A.2d at 599; , 861 A.2d

at 273; , 294 F. Supp. 3d at 405.

, 150 F.R.D. at 490. Accordingly, the objection to production

of PRIV-00189 (Control No. 304484) and PRIV-00232 (Control No.

400468) on attorney-client privilege grounds is overruled.

27 This title contains various statutes regulating gaming in

connection with the activities of charitable organizations, including

Pennsylvania’s Bingo Law and Local Option Small Games of Chance Act.

PRIV-00874 (Control No. 1401723)28 is an email message from

Eckert attorney Hittinger to Eckert attorney Stewart concerning Senate

Bill 710 and forwarding a copy of draft legislation that Eckert attorneys

had previously prepared, which had proposed amending 18 Pa. Cons.

Stat. Ann. § 5513 to ban electronic skill games altogether. The subject

matter of this communication concerns legislative, political, or policy

advice only—not advice—and thus it is not protected by attorney-

client privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that this

communication involved any confidential client information, nor any

communication whatsoever to or from a client. , 329 U.S. at

508; , 232 F.R.D. at 481–82; , 136 F.R.D. at

426–27; , 1992 WL 57916, at *5; , 889

A.2d at 599; , 861 A.2d at 273; , 294 F. Supp. 3d at

405. , 150 F.R.D. at 490.

Accordingly, the objection to production of PRIV-00874 (Control No.

1401723) on attorney-client privilege grounds is overruled.

28 Tab 2-89.

PRIV-00973 (Control No. 1701132)29 is an email exchange between

Eckert attorneys Stewart and Hittinger in which Hittinger summarized

and attached copies of a dozen different draft legislative proposals

concerning skill games that Hittinger found on Eckert’s document

system, which appears to include both drafts prepared by Eckert

attorneys and copies of bills actually proposed in the state legislature.

The subject matter of these communications concerns legislative,

political, or policy advice only—not advice—and thus they are not

protected by attorney-client privilege. , 148 F.3d at 1106;

, 136 F.R.D. at 426. Moreover, there is nothing in the record before

us to suggest that these communications involved any confidential client

information, nor any communication whatsoever to or from a client.

, 329 U.S. at 508; , 232 F.R.D. at 481–82;

, 136 F.R.D. at 426–27; , 1992 WL

57916, at *5; , 889 A.2d at 599; , 861 A.2d at 273;

, 294 F. Supp. 3d at 405.

, 150 F.R.D. at 490. Accordingly, the objection to production of PRIV-

00973 (Control No. 1701132) on attorney-client privilege grounds is

29 Tab 2-106.

overruled.

PRIV-00056 (Control No. 1900242),30 PRIV-00057 (Control No.

502252),31 PRIV-00062 (Control No. 60848),32 PRIV-00068 (Control No.

1900210),33 PRIV-00069 (Control No. 1900231),34 PRIV-00071 (Control

No. 1900229),35 PRIV-00072 (Control No. 500973),36 PRIV-00076 (Control

No. 304115),37 PRIV-00077 (Control No. 1900168),38 PRIV-00079 (Control

No. 304194),39 PRIM-00084 (Control No. 1900216),40 PRIV-00089

(Control No. 304526),41 PRIV-00090 (Control No. 800811),42 PRIV-00092

(Control No. 304193),43 and PRIV-00101 (Control No. 2000181)44 consist

of email messages exchanged between Eckert attorneys Stewart and

30 Tab 2-4.

31 Tab 2-5.

32 Tab 2-6.

33 Tab 2-10.

34 Tab 2-11.

35 Tab 2-12.

36 Tab 2-13.

37 Tab 2-16.

38 Tab 2-17.

39 Tab 2-18.

40 Tab 2-21.

41 Tab 2-22.

42 Tab 2-23.

43 Tab 2-24.

44 Tab 2-25.

Yocum and Eckert legal assistant Jennifer Skoff concerning the

preparation of a “skill games industry letter.” Some of these email

messages include drafts of a letter expressly intended for distribution to

a mailing list of state legislators on behalf of a group of (ultimately)

thirteen separate casino groups.45 One of the email messages includes a

draft of a “collaborative letter” addressed to an official of the

Pennsylvania Gaming Control Board requesting temporary relief from a

particular table-gaming regulation on behalf of a group of eleven separate

casino groups.46 Some of the messages also include forwarded email

messages about the skill games industry letter reflecting email

exchanges with non-Eckert attorneys representing the non-party casino

groups. The subject matter of these communications concerns legislative,

political, or policy advice only—not advice—and thus they are not

protected by attorney-client privilege. , 148 F.3d at 1106;

, 136 F.R.D. at 426. Moreover, there is nothing in the record before

us to suggest that these communications between Eckert attorneys

involved any confidential client information. , 889 A.2d at 599;

45 The number of casino group signatories grew as revised drafts of

the letter were circulated.

46 PRIV-00090 (Control No. 800811).

, 861 A.2d at 273 Indeed, based on the context provided by our

review of all of these contested documents, the “industry letter”

was prepared not on behalf of the three clients listed on Eckert’s privilege

log (Parx, Mohegan, and Cordish47), but a larger group that also included

non-client casino groups, which shared a common or

interest in opposition to electronic skill games and joint lobbying efforts

directed at the state legislature, not a common interest that would

permit them to share confidential communications without waiver of any

attorney-client privilege that might otherwise apply.

, 492 F.3d 806, 815–16 (7th Cir. 2007);

, 278 F.R.D. 112, 118 & n.6 (E.D. Pa. 2011)

(“The common interest binding parties to the communication must be

legal in nature, and not merely commercial or business related.”).

Accordingly, the objection to production of PRIV-00056 (Control No.

47 The privilege log identifies the third client as “Stadium Casino,”

owner and operator of the Philly Live! Hotel & Casino. It is our

understanding that Stadium Casino began as a joint venture between

Parx and the Cordish Companies, but Cordish had acquired Parx’s share

of Stadium Casino prior to the time period at issue here. The materials

submitted for review refer to all three entities at times—

Cordish, Live!, and Stadium Casino—but references are predominantly

to Cordish. Thus, we too will generally refer to Cordish rather than Live!

or Stadium Casino.

1900242), PRIV-00057 (Control No. 502252), PRIV-00062 (Control No.

60848), PRIV-00068 (Control No. 1900210), PRIV-00069 (Control No.

1900231), PRIV-00071 (Control No. 1900229), PRIV-00072 (Control No.

500973), PRIV-00076 (Control No. 304115), PRIV-00077 (Control No.

1900168), PRIV-00079 (Control No. 304194), PRIM-00084 (Control No.

1900216), PRIV-00089 (Control No. 304526), PRIV-00090 (Control No.

800811), PRIV-00092 (Control No. 304193), and PRIV-00101 (Control No.

2000181) on attorney-client privilege grounds is overruled.

PRIV-00081 (Control No. 501149)48 is an email exchange between

Eckert attorney Stewart and Mohegan in-house counsel David Rome

concerning corrections to the signature block to be used for Mohegan on

the aforementioned “industry letter.” The email chain also included

additional emails exchanged between Stewart, Rome, Gmerek, and other

Mohegan executives providing updates on legislative and lobbying

developments with respect to electronic skill games. The subject matter

of these communications concerns legislative, political, or policy advice

only—not advice—and thus they are not protected by attorney-

client privilege. , 148 F.3d at 1106; , 136 F.R.D.

48 Tab 2-20.

at 426. Moreover, there is nothing in the record before us to suggest that

these communications involved any confidential client information.

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-00081 (Control No. 501149) on attorney-

client privilege grounds is overruled.

PRIV-00065 (Control No. 500116),49 PRIV-00066 (Control No.

600637),50 and PRIV-00067 (Control No. 1900210)51 consist of email

messages exchanged between Eckert attorneys Stewart, Yocum, and

Sjkodal and attorney-lobbyist Schafer regarding an email message and

attached letter that had been distributed to state legislators by a public

relations firm on behalf of Tom Marino, vice president of

government affairs and public relations. Marino’s letter concerned

electronic skill game legislation, and while his letter and the internal

Eckert email messages referenced “legal memos,” these memos were non-

confidential documents circulated widely and made publicly available on

the internet by POM, a business adversary to Parx, the purported client

49 Tab 2-7.

50 Tab 2-8.

51 Tab 2-9.

on whose behalf privilege is asserted.52 The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273. Accordingly, the objection to production of

PRIV-00065 (Control No. 500116), PRIV-00066 (Control No. 600637), and

PRIV-00067 (Control No. 1900210) on attorney-client privilege grounds

is overruled.

PRIV-00080 (Control No. 900657)53 is an email exchange between

Eckert attorneys Stewart and Skjoldal regarding the same Marino letter.

For the same reasons stated in the preceding paragraph, this email

exchange is not protected from disclosure by attorney-client privilege.

Eckert, however, has also asserted federal work-product protection with

respect to this communication. The email exchange included a summary

52 We note that, at the time, POM was still a client of Eckert as well,

in connection with POM’s activities in Virginia.

53 Tab 2-19.

by Sjkodal of the non-confidential “legal memos” disseminated by Parx’s

adversary, POM, commenting that the arguments presented by Marino

in his letter and the referenced non-confidential legal memos “parrot”

those set forth in POM’s Commonwealth Court briefs. It is clear upon

review that this communication predominantly—if not

exclusively—concerns Eckert’s legislative or lobbying strategy, and that

these email messages were not prepared in connection with the litigation

at all. Accordingly, the objection to production of PRIV-00080 (Control No.

900657) on attorney-client privilege and federal work-product protection

grounds is overruled.

PRIV-00105 (Control No. 1900236)54 is a three-message chain of

email messages. The two most recent messages involve a discussion

between Eckert attorneys Stewart and Yocum about attendance at an

upcoming press conference by a state senator regarding skill games

legislation. The earliest message in the chain, sent on June 2, 2019, at

11:01 a.m., is an email to Stewart from William J. Downey of Brownstein

Hyatt Farber Schreck, LLP (“Brownstein”), an attorney representing

Harrah’s, a non-party casino group, apparently addressing both the press

54 Tab 2-27.

conference and the Commonwealth Court litigation. Harrah’s later joined

with Parx in filing an amicus brief and moving to intervene in the

Commonwealth Court litigation. The subject matter of the two most

recent communications solely between Eckert attorneys concerns

legislative, political, or policy advice only—not advice—and thus

they are not protected by attorney-client privilege. , 148

F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is nothing in the

record before us to suggest that any of these three email messages

involved any confidential client information, nor any communication

whatsoever to or from a client. , 889 A.2d at 599; , 861

A.2d at 273. The earliest email message, from Downey to Stewart,

however, is properly withheld from disclosure under the federal work-

product doctrine, as it was prepared in anticipation of the underlying

Commonwealth Court litigation, and disclosure of Downey’s mental

impressions to the Eckert attorneys did not constitute waiver of that

protection. , 951 F.2d at 1428; , 104 F.R.D. at

445–46. Thus, the objection to production of PRIV-00105 (Control No.

1900236) on attorney-client privilege grounds is overruled, and the

objection to production of this document on federal work-product

protection grounds is overruled in part and sustained in part. This

document shall be produced, but with the email sent by William J.

Downey at 11:01 a.m. on June 2, 2019, redacted.

PRIV-00106 (Control No. 304653),55 PRIV-00107 (Control No.

400309),56 and PRIV-00108 (Control No. 304428)57 is an email exchange

between Eckert attorney Stewart, Cordish executives Joe Weinberg and

Robert Norton, Cordish general counsel Charles Jacobs, and Richard W.

Hayden of Saul Ewing LLP, another outside attorney for Cordish. The

emails concerned upcoming testimony to be presented at a state

legislative gaming oversight committee meeting by Ballard attorney

King, accompanied by Stewart and Brownstein attorney Downey. The

first email included, as an attachment, a copy of King’s draft testimony

summarizing the information and arguments previously shared with

legislators in a recent “industry letter” regarding skill games, apparently

the same one we have touched on previously in this opinion. The subject

matter of these communications concerns legislative, political, or policy

advice only—not advice—and thus they are not protected by

55 Tab 2-28.

56 Tab 2-29.

57 Tab 2-30.

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that these communications involved any confidential client

information. , 889 A.2d at 599; , 861 A.2d at 273

Accordingly, the objection to production of PRIV-00106 (Control No.

304653), PRIV-00107 (Control No. 400309), and PRIV-00108 (Control No.

304428) on attorney-client privilege grounds is overruled.

PRIV-00175 (Control No. 304601)58 and PRIV-00996 (Control No.

304259)59 consist of email messages exchanged between Eckert attorneys

Stewart and Burns discussing whether and when Burns had time to

review and summarize recently introduced legislation—Senate Bill

784—concerning the legality of electronic skill games. The email chain

also included a non-privileged prior email message from attorney-

lobbyist Gmerek to Stewart and a dozen Mohegan executives or in-house

attorneys, advising them of the senate bill’s introduction and providing a

brief summary of its background. The email chain, as represented in

PRIV-00996, was produced to POM in discovery with the most recent

58 Tab 2-31.

59 Tab 2-110.

email message from Stewart to Burns redacted; the Gmerek email

message and attachments were produced without redaction.60 The

subject matter of these communications concerns legislative, political, or

policy advice only—not advice—and thus they are not protected by

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that these communications involved any confidential client

information. , 889 A.2d at 599; , 861 A.2d at 273

Accordingly, the objection to production of PRIV-00175 (Control No.

304601) and PRIV-00996 (Control No. 304259) on attorney-client

privilege grounds is overruled.

PRIV-00262 (Control No. 304160),61 PRIV-00263 (Control No.

1800457),62 PRIV-00264 (Control No. 304508),63 and PRIV-00265

(Control No. 1800543)64 consist of an exchange of email messages among

Eckert attorneys Stewart, Burns, Yocum, Marsilio, and Skjoldal about an

upcoming legislative committee hearing on proposed legislation to tax

60 ECKERT019101–ECKERT019114.

61 Tab 2-34.

62 Tab 2-35.

63 Tab 2-36.

64 Tab 2-37.

and regulate—rather than prohibit—skill games, House Bill 1598. The

email chain also included earlier, clearly non-privileged emails

exchanged between Eckert attorney Stewart, attorney-lobbyists Schafer

and Gmerek, Parx executive Green, Parx general counsel Tom Bonner,

and Ryan Skoczylas, who served as chief of staff to a state senator at the

time.65 The subject matter of these communications concerns legislative,

political, or policy advice only—not advice—and thus they are not

protected by attorney-client privilege. , 148 F.3d at 1106;

, 136 F.R.D. at 426. Moreover, there is nothing in the record before

us to suggest that these communications involved any confidential client

information. , 889 A.2d at 599; , 861 A.2d at 273

65 It is beyond cavil that the inclusion of a state government

official—the chief of staff for Senator Tommy Tomlinson, who sponsored

or advocated anti-skill games legislation favored by the casino groups on

multiple occasions—in of these earlier email messages precludes

any argument that these earlier communications are protected by

attorney-client privilege. , , 570 F.

Supp. 3d 258, 265 (E.D. Pa. 2021) (“Attorney-client privilege will not

ordinarily attach to communications made in the presence of a third

party, and disclosing privileged communications to a third party waives

the privilege.”) (citing , 210 A.3d 966, 982 (Pa.

2019)); , 493 F.3d at 364 (noting that

application of the exception to waiver of attorney-client privilege under

the common-interest doctrine requires not only a shared interest,

but also that “the communication must be shared with the of the

member of the community of interest”) (emphasis in original).

Accordingly, the objection to production of PRIV-00262 (Control No.

304160), PRIV-00263 (Control No. 1800457), PRIV-00264 (Control No.

304508), and PRIV-00265 (Control No. 1800543) on attorney-client

privilege grounds is overruled.

PRIV-00308 (Control No. 304159)66 and PRIV-00998 (Control No.

1900215)67 consist of email messages exchanged between Eckert

attorneys Stewart and Yocum concerning attendance at an upcoming

legislative committee hearing on proposed legislation to tax and

regulate—rather than prohibit—skill games, House Bill 1598. The email

chain also includes an earlier non-privileged email message from

attorney-lobbyist Gmerek to Parx executive Green, Parx general counsel

Bonner, attorney-lobbyist Schafer, and Eckert attorney Stewart reporting

on the upcoming hearing and the anticipated roster of witnesses who

would present testimony. The email chain, as represented in PRIV-00998,

was produced to POM in discovery with the two email messages between

Stewart and Yocum redacted; the Gmerek email message was produced

without redaction.68 The subject matter of these communications

66 Tab 2-40.

67 Tab 2-111.

68 ECKERT019061.

concerns legislative, political, or policy advice only—not advice—

and thus they are not protected by attorney-client privilege.

, 148 F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is

nothing in the record before us to suggest that these communications

involved any confidential client information. , 889 A.2d at 599;

, 861 A.2d at 273 Accordingly, the objection to production of PRIV-

00308 (Control No. 304159) and PRIV-00998 (Control No. 1900215) on

attorney-client privilege grounds is overruled.

PRIV-00271 (Control No. 304122)69 and PRIV-00305 (Control No.

900215)70 consist of email messages exchanged between Eckert attorneys

Stewart, Skjoldal, and Burns regarding the drafting of a cover letter to

accompany a draft ordinance making skill games a public nuisance in

adopting municipalities, for consideration by unspecified municipal

officials to whom the letter was to be sent. Attached to the first email

message is an initial draft cover letter prepared by Burns. Attached to

the second email message is a revised draft cover letter prepared by

Skjoldal. The second email message also includes prior email messages

69 Tab 2-38.

70 Tab 2-39.

forwarding both draft cover letters to Eckert attorneys Miller and G.

Edward Schweikert for comment. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273 Accordingly, the objection to production of

PRIV-00271 (Control No. 304122) and PRIV-00305 (Control No. 900215)

on attorney-client privilege grounds is overruled.

PRIV-00329 (Control No. 304139)71 is an email message from

Eckert attorney Stewart to Eckert attorney Yocum forwarding a copy of

the final version of the draft nuisance ordinance cover letter discussed in

the preceding paragraph. The email chain includes an earlier transmittal

message from Stewart to Parx executive Green forwarding the very same

document. The subject matter of these communications concerns

legislative, political, or policy advice only—not advice—and thus

71 Tab 2-44.

they are not protected by attorney-client privilege. , 148

F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is nothing in the

record before us to suggest that these communications involved any

confidential client information. , 889 A.2d at 599; , 861

A.2d at 273 Finally, based on Stewart’s own comments, the attached

cover letter was disseminated widely to third-party municipal officials,

and thus it cannot be considered confidential information. Accordingly,

the objection to production of PRIV-00329 (Control No. 304139) on

attorney-client privilege grounds is overruled.

PRIV-00333 (Control No. 1900224),72 PRIV-00334 (Control No.

304576),73 and PRIV-00335 (Control No. 304575)74 consist of email

messages exchanged between Eckert attorneys Stewart and Yocum

discussing whether to add information about the state gaming board’s

local law enforcement grant program to their cover letter to municipal

officials forwarding a draft ordinance designed to make skill games a

public nuisance. The email chain also includes prior email messages in

which Stewart considered whether to forward this same information on

72 Tab 3-1.

73 Tab 3-2.

74 Tab 3-3.

to Eckert’s casino group clients as well. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information.

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-00333 (Control No. 1900224), PRIV-

00334 (Control No. 304576), and PRIV-00335 (Control No. 304575) on

attorney-client privilege grounds is overruled.

PRIV-00366 (Control No. 304699)75 is an email message from

Eckert attorney Stewart to Cordish executives Weinberg, Norton, and Joe

Billhimer. Stewart’s seven-paragraph email message addressed both

developments in POM’s Commonwealth Court cases and developments

in state skill games legislation. The first three paragraphs of Stewart’s

message discussed the Commonwealth Court’s November 20, 1999, skill

games decision and legal arguments being floated by both sides, but

without any factual application at all. The last four paragraphs of the

75 Tab 2-45.

message, however, summarized recent developments on the legislative /

lobbying front with respect to skill games. Appended to the email

message was a copy of a public “co-sponsorship” memorandum from two

non-party state representatives, Jim Marshall and Scott Conklin, to all

members of the state house indicating the intent of Marshall and Conklin

to introduce legislation to legalize and regulate skill games in club liquor-

licensed establishments. The subject matter of this communication

predominantly concerns legislative, political, or policy advice only—not

advice—and thus it is not protected by attorney-client privilege.

, 148 F.3d at 1106; , 136 F.R.D. at 426. Moreover,

there is nothing in the record before us to suggest that any part of this

email message involved any confidential client information, particularly

in the absence of factual application whatsoever to the client. ,

136 F.R.D. at 426–27; , 1992 WL 57916, at *5;

, 889 A.2d at 599; , 861 A.2d at 273. Nevertheless, we find

that the first three paragraphs are properly withheld from disclosure

under the federal work-product doctrine, as this segregable portion of

Stewart’s message appears to have been prepared in anticipation of the

client’s intervention in the underlying Commonwealth Court litigation.

, 951 F.2d at 1428; , 104 F.R.D. at 445–46. Thus,

the objection to production of PRIV-00366 (Control No. 304699) on

attorney-client privilege grounds is overruled, and the objection to

production of this document on federal work-product protection grounds

is overruled in part and sustained in part. This document shall be

produced, but with the first three paragraphs (following the salutation,

“Guys,”) redacted.

PRIV-00493 (Control No. 800930),76 PRIV-00495 (Control No.

800305),77 PRIV-00496 (Control No. 801228),78 and PRIV-00497 (Control

No. 801231)79 consist of email messages exchanged between Eckert

attorney Stewart and Cordish executives Weinberg, Norton, and

Billhimer, concerning a public “co-sponsorship” memorandum from the

non-party state senate majority leader, Jake Corman, to all members of

the state senate indicating his intent to introduce legislation to legalize

and regulate the placement of skill games in liquor-licensed

establishments statewide. Stewart’s initial email message also conveyed

76 Tab 2-46.

77 Tab 2-47.

78 Tab 2-48.

79 Tab 2-49.

a proposal by Parx executives to hold a casino industry meeting and

legislative reception. Senator Corman’s co-sponsorship memorandum

was attached to the first email in the chain. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information.

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-00493 (Control No. 800930), PRIV-00495

(Control No. 800305), PRIV-00496 (Control No. 801228), and PRIV-00497

(Control No. 801231) on attorney-client privilege grounds is overruled.

PRIV-00597 (Control No. 801161)80 consists of an exchange of email

messages between Eckert attorney Stewart and Cordish executive

Norton regarding the agenda for the aforementioned industry meeting.

The email chain includes a prior message from Stewart to a number of

casino executives and outside counsel providing a schedule and logistical

details for the meeting. The subject matter of these communications

80 Tab 2-51.

concerns legislative, political, or policy advice only—not advice—

and thus they are not protected by attorney-client privilege.

, 148 F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is

nothing in the record before us to suggest that these communications

involved any confidential client information. , 889 A.2d at 599;

, 861 A.2d at 273 Accordingly, the objection to production of PRIV-

00597 (Control No. 801161) on attorney-client privilege grounds is

overruled.

PRIV-00554 (Control No. 1102670)81 consists of an exchange of

email messages between Eckert attorneys Stewart and Hittinger

concerning an upcoming legislative hearing. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273 Accordingly, the objection to production of

81 Tab 2-50.

PRIV-00554 (Control No. 1102670) on attorney-client privilege grounds

is overruled.

PRIV-00614 (Control No. 800947)82 is an email chain concerning a

public “co-sponsorship” memorandum by a non-party state

representative, Martina A. White, indicating her intent to introduce

legislation allocating the local share derived from Philadelphia-area

casinos to SEPTA. The initial email message in the chain is from

attorney-lobbyist Gmerek to a blind distribution list providing a brief

summary of the co-sponsorship memorandum and forwarding a copy of

the memorandum. The next and final email message is from Eckert

attorney Stewart to Cordish executives Weinberg, Norton, and Billhimer,

forwarding Gmerek’s email message and the co-sponsorship

memorandum, and providing some legal analysis and factual application

to the client, Cordish. The subject matter of Gmerek’s initial email

message concerns legislative, political, or policy advice only—not

advice—and thus it is not protected by attorney-client privilege.

, 148 F.3d at 1106; , 136 F.R.D. at 426. Moreover, there

is nothing in the record before us to suggest that this portion of the

82 Tab 2-52.

communications involved any confidential client information.

, 889 A.2d at 599; , 861 A.2d at 273 The latest email

message, from Stewart to the Cordish executives, however, is shielded

from disclosure by attorney-client privilege. , 136 F.R.D. at

426–27; , 1992 WL 57916, at *5. Thus, the

objection to production of PRIV-00614 (Control No. 800947) on attorney-

client privilege grounds is overruled in part and sustained in part. This

document shall be produced, but with the email sent by Mark S. Stewart

at 12:56 p.m. on February 9, 2020, redacted.

PRIV-00651 (Control No. 801264)83 consists of an exchange of email

messages between Eckert attorneys Stewart and Hittinger concerning an

upcoming legislative hearing on House Bill 1983. The email chain also

included a prior email message on the same subject from Hittinger to

Ballard attorney King, attorney-lobbyist Gmerek, and Stewart. The

subject matter of these communications concerns legislative, political, or

policy advice only—not advice—and thus they are not protected by

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

83 Tab 2-53.

suggest that these communications involved any confidential client

information, nor any communication whatsoever to or from a client.

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-00651 (Control No. 801264) on attorney-

client privilege grounds is overruled.

PRIV-00653 (Control No. 1102545),84 PRIV-00654 (Control No.

801204);85 PRIV-00655 (Control No. 801206),86 PRIV-00656 (Control No.

801207),87 and PRIV-00657 (Control No. 801205)88 consists of email

messages exchanged between Eckert attorneys Stewart and Hittinger

and Eckert legal assistant Skoff concerning Hittinger’s attendance at a

legislative committee hearing, brief comments on questions asked by

various state representatives, and discussion about obtaining a

transcript or recording of the hearing. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

84 Tab 2-54.

85 Tab 2-55.

86 Tab 2-56.

87 Tab 2-57.

88 Tab 2-58.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273 Accordingly, the objection to production of

PRIV-00653 (Control No. 1102545), PRIV-00654 (Control No. 801204);

PRIV-00655 (Control No. 801206), PRIV-00656 (Control No. 801207), and

PRIV-00657 (Control No. 801205) on attorney-client privilege grounds is

overruled.

PRIV-00660 (Control No. 801345)89 consists of email messages

exchanged between Eckert attorneys Hittinger and Stewart regarding

questions asked at the aforementioned hearing by a non-party state

representative, Marcia Hahn, and about prior interactions Stewart and

attorney-lobbyist Gmerek had with her. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

89 Tab 2-59.

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273 Accordingly, the objection to production of

PRIV-00660 (Control No. 801345) on attorney-client privilege grounds is

overruled.

PRIV-00677 (Control No. 1001314)90 is an email exchange between

Eckert attorneys Stewart and Burns regarding proposed skill games

legislation in Virginia, House Bill 881, to legalize and regulate electronic

skill games by carving out an exception to a general statewide ban on

skill games to permit their placement in “family entertainment centers.”

This Virginia legislation paralleled similar proposed legislation in

Pennsylvania, which Stewart and the casino groups opposed. The most

recent email message in the chain from Burns to Stewart contains a

summary of the Virginia bill’s provisions, without factual application to

any client. Burns also attached a PDF copy of the Virginia bill to that

message. The email chain also included an earlier, non-privileged

transmittal email message from attorney-lobbyist Gmerek to Parx

executive Green, attorney-lobbyist Schafer, and Eckert attorney Stewart

merely forwarding a link to a newspaper article reporting on the Virginia

90 Tab 1-2.

legislature’s approval of legislation generally banning skill games.91 The

subject matter of these communications concerns legislative, political, or

policy advice only—not advice—and thus they are not protected by

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that these communications involved any confidential client

information. , 889 A.2d at 599; , 861 A.2d at 273

Accordingly, the objection to production of PRIV-00677 (Control No.

1001314) on attorney-client privilege grounds is overruled.

PRIV-00692 (Control No. 1001312),92 PRIV-00711 (Control No.

502250),93 and PRIV-00722 (Control No. 501421)94 consists of email

messages exchanged between Eckert attorneys Stewart, Burns, and

Yocum and Eckert legal assistant Skoff regarding the status of Virginia

House Bill 881, which ultimately was adopted with amendments and

91 Marie Albiges,

, Newport News Daily Press (Mar. 8, 2020),

https://www.dailypress.com/2020/03/08/lawmakers-approve-casinos-in-

portsmouth-norfolk-and-3-other-cities/ [https://perma.cc/9ZVJ-HH7L],

2020 WLNR 6975695 (Mar. 9, 2020).

92 Tab 1-3.

93 Tab 1-4.

94 Tab 1-5.

signed into law by the state governor. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273 Accordingly, the objection to production of

PRIV-00692 (Control No. 1001312), PRIV-00711 (Control No. 502250),

and PRIV-00722 (Control No. 501421) on attorney-client privilege

grounds is overruled.

PRIV-00679 (Control No. 1000448),95 PRIV-00684 (Control No.

1000446),96 and PRIV-00755 (Control No. 400483)97 consist of email

messages exchanged between Eckert attorneys Stewart and Hittinger

concerning attached drafts of a memorandum prepared by Hittinger on

legislative strategies for outlawing skill games. The subject matter of

these communications concerns legislative, political, or policy advice

95 Tab 2-61.

96 Tab 2-62.

97 Tab 2-69.

only—not advice—and thus they are not protected by attorney-

client privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

communication whatsoever to or from a client; the memorandum itself

merely summarized pertinent case law without factual application to any

client whatsoever. , 329 U.S. at 508; ,

232 F.R.D. at 481–82; , 136 F.R.D. at 426–27;

, 1992 WL 57916, at *5; , 889 A.2d at 599; , 861 A.2d

at 273. Accordingly, the objection to production of PRIV-00679 (Control

No. 1000448), PRIV-00684 (Control No. 1000446), and PRIV-00755

(Control No. 400483) on attorney-client privilege grounds is overruled.

PRIV-00685 (Control No. 500257)98 is a transmittal email message

from Eckert attorney Stewart to attorney-lobbyist Gmerek, forwarding,

without any substantive comment, a copy of the non-privileged legislative

strategies memorandum prepared by Eckert attorney Hittinger,

discussed in the preceding paragraph. Accordingly, the objection to

production of PRIV-00685 (Control No. 500257) on attorney-client

98 Tab 2-63.

privilege grounds is overruled.

PRIV-00701 (Control No. 500660)99 and PRIV-00703 (Control No.

1001050)100 consist of email messages exchanged between Eckert

attorneys Stewart and Hittinger regarding a “legal update”101 prepared

by Hittinger with respect to “Windfall Amusements 777,” an unlicensed

“mini-casino” operating with 60 to 90 skill machines in a Berks County

shopping plaza storefront. The email chain includes prior transmittal

email messages circulated among a larger group of attorney-lobbyists

regarding a casino lobbyist meeting, but documents attached to these

earlier email messages are not attached to the two email chains

presented for review. In one of these two email chains, Stewart

has forwarded a copy of a fact sheet prepared by Ballard attorney King

regarding Windfall Amusements 777 for Hittinger to consider

incorporating into the “legal update” he was preparing.102 In the second

99 Tab 2-65.

100 Tab 2-66.

101 Despite labeling the document prepared by Hittinger a “legal

update,” it contains only factual information and no legal advice.

102 It is unclear from the context provided in this email exchange

whether this “legal update” was intended for distribution to Eckert

attorneys, Eckert clients, or the wider casino industry group. The

intended recipients, however, are immaterial, as none of the information

or attached documents contain any confidential client information.

email chain, Hittinger has forwarded a copy of a “legal update” he has

prepared regarding the Windfall Amusements 777 facility, incorporating

facts and photographs Stewart had received from King. The subject

matter of these communications concerns legislative, political, or policy

advice only—not advice—and thus they are not protected by

attorney-client privilege.103 , 148 F.3d at 1106; ,

136 F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that these communications involved any confidential client

information, nor any communication whatsoever to or from a client.

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-00701 (Control No. 500660) and PRIV-

00703 (Control No. 1001050) on attorney-client privilege grounds is

overruled.

PRIV-00740 (Control No. 500940)104 is an email from Eckert

103 Indeed, we note that there is nothing in the record before us to

suggest any litigation—or even consideration of litigation—by Parx or

any other Eckert client with respect to this facility. Though not material

to the discovery dispute at issue, we note by way of background that

Windfall Amusements 777 was ultimately raided and shut down by state

police. Gillian McGoldrick,

, Lancaster

Newspapers (Aug. 21, 2020), 2020 WLNR 23665432.

104 Tab 2-67.

attorney to Cordish executive Weinberg forwarding a proposed draft

letter for Weinberg to use to personally lobby state legislators to oppose

legislation that would expand the availability of skill games. The draft

letter itself is intended for non-confidential dissemination to multiple

recipients in the state legislature. The email message from Stewart

further indicates that the draft letter is not provided in response to any

request by Weinberg or Cordish, but at the behest of Parx executive

Green. The email message provides additional comments on the industry

group’s broader lobbying and public relations efforts in opposition to skill

games expansion. The subject matter of these communications concerns

legislative, political, or policy advice only—not advice—and thus

they are not protected by attorney-client privilege. , 148

F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is nothing in the

record before us to suggest that these communications involved any

confidential client information. , 889 A.2d at 599; , 861

A.2d at 273 Finally, while both Weinberg/Cordish and Green/Parx were

clients of Stewart, the two clients shared at most a common

or interest in opposition to electronic skill games and joint

lobbying efforts directed at the state legislature, not a common

interest that would permit them to share confidential communications

without waiver of any attorney-client privilege that might otherwise

apply. , 492 F.3d at 815–16; , 278

F.R.D. at 118 & n.6; , 493 F.3d at 364

(noting that application of the exception to waiver of attorney-client

privilege under the common-interest doctrine requires not only a shared

interest, but also that “the communication must be shared with the

of the member of the community of interest”) (emphasis in

original). Accordingly, the objection to production of PRIV-00740 (Control

No. 500940) on attorney-client privilege grounds is overruled.

PRIV-00751 (Control No. 502397)105 is an email message from

Eckert attorney Stewart to Cordish executive Weinberg providing him

with an “FYI” regarding the identity of a lobbyist recently hired by POM.

The subject matter of this communication concerns legislative, political,

or policy advice only—not advice—and thus it is not protected by

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that this communication involved any confidential client

105 Tab 2-68.

information. , 889 A.2d at 599; , 861 A.2d at 273

Accordingly, the objection to production of PRIV-00751 (Control No.

502397) on attorney-client privilege grounds is overruled.

PRIV-00760 (Control No. 402110),106 PRIV-00761 (Control No.

402019),107 PRIV-00762 (Control No. 502333),108 and PRIV-00763

(Control No. 500757)109 consist of email messages exchanged between

Eckert attorneys Stewart and Hittinger regarding an attached summary

by Hittinger of key provisions of proposed legislation to legalize skill

games, House Bill 1325. The latest of these email messages, PRIV-00763,

included a copy of a prior transmittal email message from Stewart to

Parx executives Green and Hausler, Parx general counsel Bonner,

attorney-lobbyist Gmerek, and non-lawyer public relations consultant

Shelly, distributing a copy of Hittinger’s summary without additional

comment. The subject matter of these communications concerns

legislative, political, or policy advice only—not advice—and thus

they are not protected by attorney-client privilege. , 148

106 Tab 2-70.

107 Tab 2-71.

108 Tab 2-72.

109 Tab 2-73.

F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is nothing in the

record before us to suggest that these communications involved any

confidential client information. , 889 A.2d at 599; , 861

A.2d at 273 Accordingly, the objection to production of PRIV-00760

(Control No. 402110), PRIV-00761 (Control No. 402019), PRIV-00762

(Control No. 502333), and PRIV-00763 (Control No. 500757) on attorney-

client privilege grounds is overruled.

PRIV-00782 (Control No. 801235),110 PRIV-00783 (Control No.

1102560),111 PRIV-00784 (Control No. 1500588),112 PRIV-00786 (Control

No. 1500798),113 PRIV-00787 (Control No. 302906),114 PRIV-00788

(Control No. 1001628),115 and PRIV-00804 (Control No. 1001578)116

consist of email messages exchanged between Eckert attorneys Stewart

and Hittinger regarding newly proposed legislation to legalize skill

games, Senate Bill 1256, and the drafting of a memorandum

summarizing the key provisions of this proposed legislation. Each of

110 Tab 2-74.

111 Tab 2-75.

112 Tab 2-76.

113 Tab 2-77.

114 Tab 2-78.

115 Tab 2-79.

116 Tab 2-80.

these email chains include prior non-privileged transmittal email

messages from attorney-lobbyist Gmerek to Stewart and various Parx or

Mohegan casino group executives forwarding a PDF copy of the actual

bill.117 One includes a complete copy of Senate Bill 1256 itself as an

attachment. Several others include a copy of one of two versions of

Hittinger’s memorandum summarizing the key provisions of the bill. The

subject matter of these communications concerns legislative, political, or

policy advice only—not advice—and thus they are not protected by

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that these communications involved any confidential client

information. , 889 A.2d at 599; , 861 A.2d at 273

Accordingly, the objection to production of PRIV-00782 (Control No.

801235), PRIV-00783 (Control No. 1102560), PRIV-00784 (Control No.

1500588), PRIV-00786 (Control No. 1500798), PRIV-00787 (Control No.

302906), PRIV-00788 (Control No. 1001628), and PRIV-00804 (Control

117 One of the email chains produced for review started

with an initial message from Gmerek to Stewart and various Parx

executives. The rest started with an initial message from Gmerek to

Stewart and various Mohegan executives.

No. 1001578) on attorney-client privilege grounds is overruled.

PRIV-00806 (Control No. 1001753)118 is a transmittal email

message from Eckert attorney Hittinger to Mohegan executives Anthony

Carlucci and Raymond Pineault, Eckert attorney Stewart, and attorney-

lobbyist Gmerek forwarding copies of his memorandum summarizing the

key provisions of Senate Bill 1256 and a copy of the bill itself. The subject

matter of these communications concerns legislative, political, or policy

advice only—not advice—and thus they are not protected by

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that these communications involved any confidential client

information. , 889 A.2d at 599; , 861 A.2d at 273

Accordingly, the objection to production of PRIV-00806 (Control No.

1001753) on attorney-client privilege grounds is overruled.

PRIV-00807 (Control No. 1001756)119 is a transmittal email

message from Eckert attorney Hittinger to Parx executives Green and

Hausler, Parx general counsel Bonner, Eckert attorney Stewart, and

118 Tab 2-81.

119 Tab 2-82.

attorney-lobbyist Gmerek forwarding copies of his memorandum

summarizing the key provisions of Senate Bill 1256 and a copy of the bill

itself. The subject matter of these communications concerns legislative,

political, or policy advice only—not advice—and thus they are not

protected by attorney-client privilege. , 148 F.3d at 1106;

, 136 F.R.D. at 426. Moreover, there is nothing in the record before

us to suggest that these communications involved any confidential client

information. , 889 A.2d at 599; , 861 A.2d at 273

Accordingly, the objection to production of PRIV-00807 (Control No.

1001756) on attorney-client privilege grounds is overruled.

PRIV-00810 (Control No. 1401405),120 PRIV-00816 (Control No.

1401278),121 and PRIV-00817 (Control No. 1401350)122 consist of email

messages exchanged between Eckert attorneys Stewart and Hittinger

concerning the preparation of a second “industry letter” on behalf of the

same thirteen casino groups, this time focused on the industry’s

opposition to Senate Bill 1256. One of these email chains includes a prior

exchange of email messages between Hittinger and attorney-lobbyist

120 Tab 2-83.

121 Tab 2-84.

122 Tab 2-85.

Gmerek regarding the letter’s composition. A second email chain includes

prior email messages circulated among a number of lobbyists and public

relations consultants for the casino groups regarding a conference call,

as well as a draft of this second industry letter that had been circulated

to the conference call participants by Stewart. A third email chain

includes a prior email message from attorney-lobbyist Gmerek

summarizing the content of testimony presented at a public hearing

before a state legislative committee. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information.

, 889 A.2d at 599; , 861 A.2d at 273 Indeed, based on the

context provided by our review of all of these contested

documents, the “industry letter” was prepared not on behalf of the three

clients listed on Eckert’s privilege log (Parx, Mohegan, and Cordish), but

a larger group that also included non-client casino groups, which shared

a common or interest in opposition to electronic skill

games and joint lobbying efforts directed at the state legislature, but not

a common interest that would permit them to share confidential

communications without waiver of any attorney-client privilege that

might otherwise apply. , 492 F.3d at 815–16;

, 278 F.R.D. at 118 & n.6. Accordingly, the objection to

production of PRIV-00810 (Control No. 1401405), PRIV-00816 (Control

No. 1401278), and PRIV-00817 (Control No. 1401350) on attorney-client

privilege grounds is overruled.

PRIV-00830 (Control No. 1500644)123 and PRIV-00832 (Control No.

1500638)124 consist of email messages exchanged between Eckert

attorneys Stewart and Hittinger regarding an upcoming state legislative

hearing on skill games. In these email messages, Stewart requested and

Hittinger provided questions for friendly legislators to ask at the

hearing.125 The subject matter of these communications concerns

123 Tab 2-86.

124 Tab 2-87.

125 We pause to underscore that these questions were expressly

intended for disclosure to third party government officials, and thus any

claim of confidentiality or privilege with respect to the questions

themselves is untenable. note 65. Indeed, a subsequent,

revised version of these same questions, as they were ultimately

communicated from Stewart to attorney-lobbyist Gmerek, was produced

to POM in discovery. Doc. 295-7 (ECKERT005188–ECKERT005190).

legislative, political, or policy advice only—not advice—and thus

they are not protected by attorney-client privilege. , 148

F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is nothing in the

record before us to suggest that these communications involved any

confidential client information. , 889 A.2d at 599; , 861

A.2d at 273 Accordingly, the objection to production of PRIV-00830

(Control No. 1500644) and PRIV-00832 (Control No. 1500638) on

attorney-client privilege grounds is overruled.

PRIV-00843 (Control No. 302368)126 is an email message from

Eckert attorney Stewart to Cordish executive Weinberg concerning an

upcoming state senate committee hearing on skill games legislation,

Senate Bill 1256. The message includes an invitation to join Stewart in

dining with Senator Tommy Tomlinson and Parx executive Green the

evening before the hearing, logistical information about the hearing

itself, and an outline of casino industry speakers scheduled to appear at

the hearing, including Weinberg and Green. Attached to the email

message was a copy of Eckert attorney Hittinger’s memorandum

126 Tab 2-88.

summarizing the key provisions of Senate Bill 1256127 and a one-page set

of talking points in opposition to the bill. The subject matter of this

communication concerns legislative, political, or policy advice only—not

advice—and thus it is not protected by attorney-client privilege.

, 148 F.3d at 1106; , 136 F.R.D. at 426. Moreover,

there is nothing in the record before us to suggest that this

communication involved any confidential client information. ,

889 A.2d at 599; , 861 A.2d at 273 Accordingly, the objection to

production of PRIV-00843 (Control No. 302368) on attorney-client

privilege grounds is overruled.

PRIV-00881 (Control No. 1401459)128 consists of an exchange of

email messages between Eckert attorneys Stewart and Hittinger and

non-lawyer lobbyist Joseph M. Uliana concerning a list of key legislative

issues for the casino industry group, prepared in connection with

upcoming lobbyist meetings with state legislators. The email chain also

included prior email messages between Uliana, Stewart, Ballard lawyer

King, attorney-lobbyist Gmerek, and attorney-lobbyist Alex Urrea

127 See PRIV-00804 (Control No. 1001578), PRIV-00806 (Control No.

1001753), or PRIV-00807 (Control No. 1001756), discussed .

128 Tab 2-90.

concerning the agenda for those meetings with state legislators. The

subject matter of these communications concerns legislative, political, or

policy advice only—not advice—and thus they are not protected by

attorney-client privilege. , 148 F.3d at 1106; , 136

F.R.D. at 426. Moreover, there is nothing in the record before us to

suggest that these communications involved any confidential client

information, nor any communication whatsoever to or from a client.

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-00881 (Control No. 1401459) on attorney-

client privilege grounds is overruled.

PRIV-00900 (Control No. 303143)129 is a chain of email messages

exchanged between Eckert attorneys Stewart and Hittinger regarding

drafting prepared testimony for an upcoming state legislative committee

hearing. Attached is a copy of draft testimony prepared by Stewart on

behalf of Eckert client Mohegan, to be presented at the public hearing by

Mohegan executive Carlucci. The subject matter of these communications

concerns legislative, political, or policy advice only—not advice—

and thus they are not protected by attorney-client privilege.

129 Tab 2-91.

, 148 F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is

nothing in the record before us to suggest that these communications

involved any confidential client information. , 889 A.2d at 599;

, 861 A.2d at 273 Accordingly, the objection to production of PRIV-

00900 (Control No. 303143) on attorney-client privilege grounds is

overruled.

PRIV-00902 (Control No. 1500490)130 is a chain of email messages

exchanged between Eckert attorneys Stewart and Hittinger regarding a

casino industry lobbyist conference call, in which Stewart asked

Hittinger to cover the call because he had another commitment, and

Hittinger reported on the “relatively uneventful” call. The email chain

includes prior email message circulated among a larger group of casino

lobbyists, including non-lawyer lobbyists Uliana and Shelly, with call-in

information for the conference call. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

130 Tab 2-92.

communications involved any confidential client information, nor any

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273 Accordingly, the objection to production of

PRIV-00902 (Control No. 1500490) on attorney-client privilege grounds

is overruled.

PRIV-00911 (Control No. 302166),131 PRIV-00912 (Control No.

303907),132 and PRIV-00913 (Control No. 1500840)133 are email messages

exchanged between Eckert attorneys Stewart and Hittinger regarding

time-sensitive efforts to conduct fact research on the status of skill games

legislation in Virginia and other states in connection with preparing a

friendly Pennsylvania state legislator, Senator Tommy Tomlinson, to

respond to anticipated remarks by a pro-skill games legislator, Senator

Gene Yaw. The email chain included prior email messages exchanged

between Stewart and attorney-lobbyists Gmerek and Schafer regarding

the same issue. One of the email messages included a copy of a draft

response to Yaw prepared for Tomlinson by Schafer. The subject matter

of these communications concerns legislative, political, or policy advice

131 Tab 2-93.

132 Tab 2-94.

133 Tab 2-95.

only—not advice—and thus they are not protected by attorney-

client privilege. , 148 F.3d at 1106; , 136 F.R.D.

at 426. Moreover, there is nothing in the record before us to suggest that

these communications involved any confidential client information.134

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-00911 (Control No. 302166), PRIV-00912

(Control No. 303907), and PRIV-00913 (Control No. 1500840) on

attorney-client privilege grounds is overruled.

PRIV-00919 (Control No. 302985)135 consists of email messages

exchanged between Eckert attorneys Stewart and Hittinger and

attorney-lobbyist Gmerek regarding the preparation of proposed “poison

pill” legislative amendments for unspecified friendly legislators to use in

a floor fight on skill games legislation. The subject matter of these

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

134 We note that this draft response was expressly prepared for a

third party government official, Senator Tomlinson, with the expectation

that Tomlinson would further convey these remarks to other, adverse

legislators, and thus any claim of confidentiality or privilege with respect

to the draft response is untenable. note 65.

135 Tab 2-96.

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273 Accordingly, the objection to production of

PRIV-00919 (Control No. 302985) on attorney-client privilege grounds is

overruled.

PRIV-00935 (Control No. 2000675),136 PRIV-00938 (Control No.

1500868),137 and PRIV-00942 (Control No. 1800563)138 consist of email

messages exchanged between Eckert attorneys Stewart, Hittinger,

Yocum, Marsilio, and Sarah C. Stoner regarding an attempt by Hittinger

to locate a “one-pager” for Stewart on the legality of skill games under

the Pennsylvania criminal code, Title 18. Ultimately, Hittinger forwarded

a “two-pager”—a draft letter on that issue from the previous year

addressed to the chairman of the Pennsylvania gaming control board—

to Stewart. The subject matter of these communications concerns

legislative, political, or policy advice only—not advice—and thus

136 Tab 2-97.

137 Tab 2-98.

138 Tab 2-99.

they are not protected by attorney-client privilege. , 148 F.3d

at 1106; , 136 F.R.D. at 426. Moreover, there is nothing in the

record before us to suggest that these communications involved any

confidential client information. , 329 U.S. at 508;

, 232 F.R.D. at 481–82; , 136 F.R.D. at 426–

27; , 1992 WL 57916, at *5; , 889 A.2d

at 599; , 861 A.2d at 273. Accordingly, the objection to production

of PRIV-00935 (Control No. 2000675), PRIV-00938 (Control No. 1500868),

and PRIV-00942 (Control No. 1800563) on attorney-client privilege

grounds is overruled.

PRIV-00949 (Control No. 302621)139 is an email exchange between

Eckert attorneys Stewart and Hittinger regarding the status of the skill

games ban enacted in Virginia and related implications for the casino

groups’ legislative efforts in Pennsylvania.140 The subject matter of these

139 Tab 1-7.

140 We note that the most recent email message in this email string

makes reference to POM’s Commonwealth Court litigation. But Eckert

has expressly omitted federal work-product protection as a basis for its

objection to disclosure of these communications. In any event, the

substantive content of this email chain does not reveal the mental

impressions of counsel with respect to the Commonwealth Court

litigation, but merely speculates on the implications that a

communications concerns legislative, political, or policy advice only—not

advice—and thus they are not protected by attorney-client

privilege. , 148 F.3d at 1106; , 136 F.R.D. at 426.

Moreover, there is nothing in the record before us to suggest that these

communications involved any confidential client information, nor any

communication whatsoever to or from a client. , 889 A.2d at

599; , 861 A.2d at 273 Accordingly, the objection to production of

PRIV-00949 (Control No. 302621) on attorney-client privilege grounds is

overruled.

PRIV-000950 (Control No. 1500447)141 consists of an email message

from Eckert attorney Stewart to Eckert attorney Hittinger instructing

the latter to conduct factual research as outlined in an attached prior

email message from Gmerek to Stewart, Parx executive Bob Green, and

non-lawyer public relations consultant Pete Shelly, which summarized

the content of a public meeting by a state legislative committee and posed

Commonwealth Court victory for the casino groups would have on their

broader legislative and business strategy vis-à-vis POM and other skill

games proponents.

141 Tab 2-102.

several questions for general factual research.142 The subject matter of

these communications concerns legislative, political, or policy advice

only—not advice—and thus they are not protected by attorney-

client privilege. , 148 F.3d at 1106; , 136 F.R.D.

at 426. Moreover, there is nothing in the record before us to suggest that

these communications involved any confidential client information.

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-000950 (Control No. 1500447) on

attorney-client privilege grounds is overruled.

PRIV-00958 (Control No. 302301)143 is an email message from

Eckert attorney Stewart to Parx executives Green and Eric Hausler and

attorney-lobbyist Gmerek forwarding an attached outline of potential

gaming legislation prepared by Stewart based on a prior discussion about

legislative strategy involving Stewart, Green, and possibly Hausler and

Gmerek. PRIV-00960 (Control No. 302303)144 is an email message from

142 By “general,” we mean fact research regarding skill games and

video gaming terminals at a statewide or industry-wide level. There is

nothing to suggest any application whatsoever of the hearing testimony

or Gmerek’s questions to any potentially confidential client information.

143 Tab 2-103.

144 Tab 2-104.

Eckert attorney Stewart forwarding the same legislative strategy outline

to Eckert attorneys Hittinger, Stoner, Marsilio, and Yocum. Although the

attached legislative strategy outline was prepared with some client input

and conveyed in confidence, the subject matter of this communication

concerns legislative, political, or policy advice only—not advice—

and thus it is not protected by attorney-client privilege. ,

148 F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is nothing

in the record before us to suggest that this communication involved

confidential facts disclosed by the client to the attorney.145 ,

889 A.2d at 599; , 861 A.2d at 273 Accordingly, the objection to

production of PRIV-00958 (Control No. 302301) and PRIV-00960 (Control

No. 302303) on attorney-client privilege grounds is overruled.

PRIV-00971 (Control No. 1700641)146 is an exchange of email

messages between Eckert attorney Stewart and Cordish executives

Weinberg and David Cordish discussing legislative strategy with respect

to video lottery terminals or video gaming terminals. The subject matter

145 Based on our review of this document, the “highly

confidential” designation applied to this outline by Stewart appears to

reflect his sensitivity to disclosure of the strategy itself, not any

underlying confidential facts communicated by the client.

146 Tab 2-105.

of these communications concerns legislative, political, or policy advice

only—not advice—and thus they are not protected by attorney-

client privilege. , 148 F.3d at 1106; , 136 F.R.D.

at 426. Moreover, there is nothing in the record before us to suggest that

these communications involved any confidential client information.

, 889 A.2d at 599; , 861 A.2d at 273 Accordingly, the

objection to production of PRIV-00971 (Control No. 1700641) on attorney-

client privilege grounds is overruled.

PRIV-00987 (Control No. 1400275)147 is an exchange of email

messages between Eckert attorneys Stewart and Hittinger about

attendance at an upcoming press conference by two state legislators

regarding skill games legislation. This email chain includes a prior email

message from attorney-lobbyist Gmerek to Stewart and ten Mohegan

executives or in-house attorneys, advising them of the press conference.

PRIV-00988 (Control No. 1103273)148 is an email message from Hittinger

to Stewart summarizing the content of public statements made by the

legislators and other speakers at the press conference. The subject matter

147 Tab 2-107.

148 Tab 2-108.

of these communications concerns legislative, political, or policy advice

only—not advice—and thus they are not protected by attorney-

client privilege. , 148 F.3d at 1106; , 136 F.R.D.

at 426. Moreover, there is nothing in the record before us to suggest that

these communications involved any confidential client information, nor

any communication whatsoever to or from a client. , 889 A.2d

at 599; , 861 A.2d at 273 Accordingly, the objection to production

of PRIV-00987 (Control No. 1400275) and PRIV-00988 (Control No.

1103273) on attorney-client privilege grounds is overruled.

PRIV-01008 (Control No. 301569)149 is an email message from

Eckert attorney Stewart to Eckert attorney Hittinger discussing a recent

state legislative committee hearing on video gaming terminals and skill

games and asking Hittinger to prepare a draft letter to the committee

offering additional information or arguments to supplement or counter

the responses given by witnesses at the hearing.150 The email chain also

included a non-privileged prior email message from attorney-lobbyist

149 Tab 2-112.

150 The hearing included testimony by a panel of state police

officials, a panel of video gaming termina industry representatives, and

a panel of skill game industry representatives.

Gmerek to Stewart, forwarding a summary of the content of the public

hearing—i.e., a summary of key questions asked by legislators and

responses by the witnesses. This email chain was produced to POM in

discovery with the most recent email message from Stewart to Hittinger

redacted; the Gmerek transmittal message was produced without

redaction, but the attached summary of questions and answers was

withheld from production.151 The subject matter of these communications

concerns legislative, political, or policy advice only—not advice—

and thus they are not protected by attorney-client privilege.

, 148 F.3d at 1106; , 136 F.R.D. at 426. Moreover, there is

nothing in the record before us to suggest that these communications

involved any confidential client information, nor any communication

whatsoever to or from a client. , 889 A.2d at 599; , 861

A.2d at 273 Accordingly, the objection to production of PRIV-01008

(Control No. 301569) on attorney-client privilege grounds is overruled.

E. Litigation Report

PRIV-00925 (Control No. 1900567)152 is an exchange of email

151 ECKERT018746.

152 Tab 1-6.

messages between Eckert attorneys Stewart and Yocum and Parx in-

house counsel Robert Mulhern Jr. These email messages concern a

request by Parx for a description of pending and recently closed litigation

matters and judgments for use in connection with an application by Parx

for a Virginia gaming license, which required disclosure of this

information to state regulators. Attached to Yocum’s response to

Mulhern’s request is a memorandum describing all litigation matters

within the preceding five years in which Eckert represented Parx or was

otherwise aware of the litigation, including the two POM Commonwealth

Court cases. Based on our review of this attachment, the

memorandum includes only non-confidential factual background and

procedural information. The email messages and attached memorandum

do not include any confidential client information; indeed, it is clear that

the information was conveyed with the intent that it be disclosed to state

regulators in connection with the client’s application for a gaming license.

, 889 A.2d at 599; , 861 A.2d at 273

Eckert has also asserted federal work-product protection. The

memorandum describes numerous pending litigation matters, but it does

not convey any mental impressions, conclusions, opinions, or legal

theories of an attorney, limiting itself to a purely factual description of

each litigation matter and its procedural status. Based on our

review of the memorandum, however, it appears that this factual

summary was originally prepared as part of the firm’s regular report on

pending litigation handled by Eckert, and then incorporated into this

memorandum in response to a specific request by the client for this same

information. Under these circumstances, we find this information is

properly withheld from disclosure under the federal work-product

doctrine, as the primary motivating purpose of the initial creation of this

factual compilation was to aid in the management of ongoing litigation

matters. , 897 F.2d 1255, 1266 (3d Cir.

1990). Disclosure of this factual information to Virginia gaming

regulators does not appear to constitute waiver of work-product

protection, as there is nothing before us to suggest that the application

itself is publicly available or otherwise accessible to an adversary.

, 951 F.2d at 1428; , 104 F.R.D. at 445–46. Finally,

there is nothing in the record before us to suggest that POM has a

substantial need for these materials and cannot, without undue

hardship, obtain their substantial equivalent by other means. Fed.

R. Civ. P. 26(b)(3).

Thus, the objection to production of PRIV-00925 (Control No.

1900567) on attorney-client privilege grounds is overruled, but the

objection to production of this document on federal work-product

protection grounds is sustained. This document shall not be produced.

IV. CONCLUSION

For the foregoing reasons, the objections to production by Eckert

will be granted in part and sustained in part. Of the 120 documents for

which Eckert’s objections to production have been challenged by POM,

one shall be withheld from production altogether, three shall be produced

with redactions as described below, and 116 shall be produced

redactions.

With respect to PRIV-00105 (Control No. 1900236),153 the objection

to production on attorney-client privilege grounds is overruled, but the

objection to production on federal work-product protection grounds is

overruled in part and sustained in part. This document shall be produced,

but with the email sent by William J. Downey at 11:01 a.m. on June 2,

2019, redacted.

153 Tab 2-27.

With respect to PRIV-00366 (Control No. 304699),154 the objection

to production on attorney-client privilege grounds is overruled, but the

objection to production on federal work-product protection grounds is

overruled in part and sustained in part. This document shall be produced,

but with the first three paragraphs (following the salutation “Guys,”)

redacted.

With respect to PRIV-00614 (Control No. 800947),155 the objection

to production on attorney-client privilege grounds is overruled in part

and sustained in part. This document shall be produced, but with the

email sent by Mark S. Stewart at 12:56 p.m. on February 9, 2020,

redacted.

With respect to PRIV-00925 (Control No. 1900567),156 the objection

to production on attorney-client privilege grounds is overruled, but the

objection to production on federal work-product protection grounds is

sustained. This document shall be produced.

With respect to all other documents challenged by POM and

submitted for review, the objections to production on attorney-

154 Tab 2-45.

155 Tab 2-52.

156 Tab 1-6.

client privilege and federal or state work-product protection grounds are

overruled. These documents shall be produced redaction.

Absent a timely appeal of this decision, Eckert shall produce the

documents described in the preceding paragraphs to POM, in the manner

described, within 21 days after entry of the accompanying order.

The parties shall each bear its own costs in connection with this

discovery dispute.

An appropriate order follows.

Dated: December 1, 2023

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge