Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

PBM PARTNERS, LLC, A FLORIDA ) Civil Action No. 2:25-CV-00537-CBB

)

LIMITED LIABILITY COMPANY;

)

)

Plaintiff, ) United States Magistrate Judge

) Christopher B. Brown

vs. )

)

MEYER UNKOVIC & SCOTT, LLP, A )

)

PENNSYLVANIA LIMITED )

LIABILITY PARTNERSHIP; ROBERT )

E. DAUER JR., W. GRANT SCOTT II, )

)

)

Defendants,

MEMORANDUM OPINION AND ORDER ON MOTION TO COMPEL1

Christopher B. Brown, United States Magistrate Judge

I. Introduction

PBM Partners, LLC (“PBM”) brought this legal malpractice action against its

former attorneys Robert Dauer, Grant Scott, and their firm Meyer Unkovic & Scott,

LLP (“Defendants” or “MUS”). PBM alleges MUS committed legal malpractice in

its handling of a dispute between PBM and its former tenant, FVP Smithfield, LLC

(“Smithfield”). ECF No. 33. The malpractice claim stems from a $3.3 million

default judgment PBM secured in a state court landlord-tenant action against

Smithfield in 2021 when it was represented by MUS, only to have the judgment

stricken and the matter reopened in 2024. Id. PBM claims it was denied the $3.3M

1 Motions to compel the production of documents are non-dispositive motions under 28 U.S.C.

§ 636(b).

default judgment due to inadequate legal representation by their former counsel,

MUS. Id.

On January 7, 2026, this Court held a status conference with the parties and,

at its conclusion, ordered briefing on two issues related to the discovery dispute at

issue here. ECF No. 39.

In summary, the dispute relates to MUS’s request for the following discovery

which PBM opposes: (1) documents related to defenses made in the underlying state

court landlord-tenant action by Smithfield, which MUS argues are related to their

affirmative defenses in the instant civil action pending before this Court; (2) MUS

also seeks the file and communications of Attorney Moss, i.e. Plaintiff’s counsel,

with his current client PBM the former client of MUS “during the time period in

2024 when Attorney Moss and MUS overlapped in representing PBM in a dispute

with [Smithfield].” ECF Nos. 40, 42. The matter has been briefed and is ripe for

resolution. ECF Nos. 40-42.

As set forth below, MUS’s request for documents related to Smithfield’s

defenses is GRANTED because they are relevant to the current dispute and MUS’s

affirmative defenses. MUS’s request for Attorney Moss’ filed is DENIED as the

documents are protected from disclosure by attorney-client privilege. PBM is

ordered to produce the documents related to Smithfield’s defenses, and a privilege

log for the documents it is withholding as privileged from Attorney Moss’ file by

September 28, 2026.

II. Legal Standard

The general framework for determining the scope of allowable discovery for

cases in federal courts is provided by Federal Rule of Civil Procedure 26(b), which

provides as follows.

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order,

the scope of discovery is as follows: Parties may obtain discovery

regarding any nonprivileged matter that is relevant to any

party's claim or defense and proportional to the needs of the

case, considering the importance of the issues at stake in the

actin, the amount in controversy, the parties’ relative access to

relevant information, the parties’ resources, the importance of

the discovery in resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its likely benefit.

Information within this scope of discovery need not be admissible

in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

(A) When permitted. By order, the court may alter the limits in

these rules on the number of depositions and interrogatories or

on the length of depositions under Rule 30. By order or local

rule, the court may also limit the number of requests under Rule

36.

(B) Specific Limitations on Electronically Stored Information. A

party need not provide discovery of electronically stored

information from sources that the party identifies as not

reasonably accessible because of undue burden or cost. On

motion to compel discovery or for a protective order, the party

from whom discovery is sought must show that the information

is not reasonably accessible because of undue burden or cost. If

that showing is made, the court may nonetheless order discovery

from such sources if the requesting party shows good cause,

considering the limitations of Rule 26(b)(2)(C). The court may

specify conditions for the discovery.

(C) When required. On motion or on its own, the court must limit

the frequency or extent of discovery otherwise allowed by these

rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or

duplicative, or can be obtained from some other source

that is more convenient, less burdensome, or less

expensive;

(ii) the party seeking discovery has had ample

opportunity to obtain the information by discovery in the

action; or

(iii) the burden or expense of the proposed discovery

outweighs its likely benefit, considering the needs of the

case, the amount in controversy, the parties' resources,

the importance of the issues at stake in the action, and

the importance of the discovery in resolving the issues.

Fed.R.Civ.P. 26(b).

Generally, courts afford considerable latitude in discovery to ensure that

litigation proceeds with “the fullest possible knowledge of the issues and facts before

trial.” Hickman v. Taylor, 329 U.S. 495, 501. The polestar of discovery is relevance,

which, for discovery purposes, is interpreted broadly. All relevant material is

discoverable unless an applicable evidentiary privilege is asserted. Pearson v.

Miller, 211 F.3d 57, 65 (3d Cir. 2000). When there is no doubt about relevance, a

court should tend toward permitting discovery. Heat and Control, Inc. v. Hester

Industries, Inc., 785 F.2d 1017, 1024 (Fed. Cir. 1986) (citing Deitchman v. E.R.

Squibb & Sons, Inc., 740 F.2d 556, at 556 (7th Cir. 1984)).

Federal Rule of Civil Procedure 34 requires a party served with a document

request to either produce the requested documents or state a specific objection for

each. The burden is upon the party objecting to discovery to state the grounds for

the objection with specificity. Fed.R.Civ.P. 34(b)(2); Momah v. Albert Einstein

Medical Center, 164 F.R.D. 412, 417 (E.D. Pa. 1996). “Mere recitation of the

familiar litany that an interrogatory or a document production request is overly

broad, burdensome, oppressive and irrelevant will not suffice.” Id. (quoting Josephs

v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)). The objecting party must

demonstrate in specific terms why a particular discovery request does not fall

within the broad scope of discovery or is otherwise privileged or improper.

Goodman v. Wagner, 553 F. Supp. 255, 258 (E.D. Pa. 1982). The party attempting

to withhold the release of relevant material for privilege must also “describe the

nature of the documents, communications, or tangible things not produced or

disclosed . . . in a manner that . . . will enable other parties to assess the claim.”

Fed.R.Civ.P. 26(b)(5)(A)(ii). Once an objection has been properly articulated, the

burden rests with the party seeking discovery to show that a discovery request lies

within the bounds of Rule 26. Momah, 164 F.R.D. at 417. Then, the party opposing

discovery must convince the court why discovery should not be had. Id. (citing

Amcast Indus. Corp. v. Detrex Corp., 138 F.R.D. 115, 118–19 (N.D. Ind. 1991)).

Federal Rule of Civil Procedure 37 also allows a party who has received

evasive or incomplete discovery responses to seek a court order compelling

additional disclosure. “The party seeking the order to compel must demonstrate the

relevance of the information sought. The burden then shifts to the opposing party,

who must demonstrate in specific terms why a discovery request does not fall within

the broad scope of discovery.” Option One Mortgage Corp. v. Fitzgerald, No. 3:07-

1877, 2009 WL 648986 at *2 (M.D. Pa. Mar.11, 2009).

III. Discussion

MUS seeks documents related to Smithfield’s defenses in the underlying

action, and Attorney Moss’ file during the time he served as co-counsel with MUS.

ECF No. 40, 42. These are discussed in turn.

a. Documents Related to Smithfield’s Defenses in the

Underlying Action

MUS first seeks discovery related to one of the defenses Smithfield raised in

the underlying state court landlord-tenant action – specifically, related to the

conduct of an individual named Michael Blum. ECF No. 40. In this respect, MUS’s

request for discovery is GRANTED.

According to PBM, Michael Blum was a manager of PBM.2 ECF No. 41 at 2.

Blum also later became a partner in Feenix Payment Systems, which in turn

created Smithfield, a single-purpose entity created to lease space in PBM’s building.

Id. PBM points out that the lease was between PBM and Smithfield and that

Blum was not a party to the lease. Id. Smithfield stopped paying rent and PBM

retained MUS related to a landlord-tenant dispute which resulted in the entry of a

$3.3M default judgement. Id. As stated previously, that judgment was later

reopened at which time Smithfield alleged it was not obligated to pay for the lease

because of Blum’s “double dealing” conduct. See, e.g. ECF No. 40-2 at 10 (“No

2 It is also alleged that Blum was also the vice president of Smithfield. ECF No. 40 at 3.

payment is owed by [Smithfield] to [PBM] because of the wrongful acts and double-

dealing of Plaintiff’s Manager, Michael Blum”).

In the underlying dispute, Smithfield raised the alleged misconduct of

Michael Blum as a defense to paying for its lease with PBM. ECF No. 40-2. Here,

MUS has also raised Blum’s conduct as a potential affirmative defense to this legal

malpractice action. ECF No. 35 at 12-13 (Twelfth Affirmative Defense).

In order to defend the legal malpractice claim against it, MUS is seeking

discovery into whether PBM could have prevailed against Smithfield in the

underlying action. ECF No. 40 at 3. See also id. at 2 (“A plaintiff must demonstrate

that he or she would have prevailed (or achieved a desired outcome) in the

underlying action in the absence of the defendant’s alleged negligence”) (citing

Myers v. Robert Lewis Seigle, P.C.,751 A.2d 1182, 1185 (Pa. Super.), app. den., 795

A.2d 978 (Pa. 2000)). It argues that Smithfield’s defenses related to Blum are

relevant to this question of whether PBM could have prevailed in the underlying

action. Id. And, in fact, in the underlying case, Smithfield spent a lot of time

discussing Blum’s conduct in its defenses and in its New Matter. ECF No. 40-2 at

10-12. MUS argues it is entitled to this discovery because if Smithfield “would have

been successful in fending off PBM’s claims in the underlying case, PBM has lost

nothing.” ECF No. 40.

PBM counters that Smithfield’s defenses in the underlying action are “not

relevant to the pending legal malpractice action.” ECF No. 41 at 2. First, PBM

argues that since the underlying dispute involved a default judgment, Smithfield

could not have raised any affirmative defenses while the judgment was valid. Id.

Second, PBM argues that even after the default judgment was overturned, PBM

had no right to pursue a case against Smithfield in the first place. Id. at 3.

Therefore, even after the judgment was reopened, “there was no legally cognizable

claim to which [Smithfield] could have even raised an affirmative defense.” Id.

Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense

and is proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis

added). Here, MUS has raised Blum’s conduct as a potential affirmative defense.

ECF No. 35 at 12-13 (Twelfth Affirmative Defense). Accordingly, this information is

relevant and discoverable. York Grp., Inc. v. Pontone, No. 2:10-CV-1078, 2011 WL

13136188, at *1 (W.D. Pa. Dec. 15, 2011) (granting motion to compel into discovery

related to affirmative defense).

PBM’s argument to the contrary – that “there was no legally cognizable claim

to which [Smithfield] could have even raised an affirmative defense” – goes to the

heart of this legal malpractice issue. MUS is seeking further information on

whether, in fact, PBM had a potential legally cognizable claim. See ECF No. 40 at 3

(“PBM was only denied a procedural default judgment. PBM’s claim survived for

further prosecution”). At this stage, it is not clear to the Court whether either

Party’s view of the underlying dispute is correct. That will become clearer through

discovery. And, in any event, “[r]elevance is generally ‘construed broadly to

encompass any matter that bears on, or that reasonably could lead to other matters

that could bear on, any issue that is or may be in the case.’” Brewer v. Shea, No.

2:20-CV-01203, 2024 WL 229741, at *4 (W.D. Pa. Jan. 22, 2024) (quoting

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)) (emphasis added).

Accordingly, MUS’s request for documents related to Smithfield’s defenses in

the underlying action is GRANTED. It is hereby ORDERED that within thirty

days, or by September 28, 2026, PBM shall produce these documents to MUS.

b. Attorney Moss’ File

MUS next seeks the file from PBM’s current counsel, Attorney Moss, when he

was co-counsel for PBM with MUS in the underlying landlord-tenant action. ECF

No. 42. As set forth in more detail below, Attorney Moss’ file in the underlying

landlord-tenant action is protected by attorney-client privilege, and MUS’s request

is DENIED.

Here, MUS seeks the client file of Attorney Moss from January 2024-August

19, 2024 when he and MUS overlapped in representing PBM as co-counsel in the

underlying landlord-tenant dispute. ECF No. 42 at 1. MUS seeks to learn “what

factual information PBM provided to Attorney Moss, what goals were expressed by

PBM, and what analysis and recommendations were provided about the very same

dispute that MUS was handling simultaneously with Attorney Moss.” Id. MUS

later reiterates it “seeks knowledge of factual information provided by PBM to

Attorney Moss and advice rendered.” Id. at 6. In a footnote, MUS makes clear it is

only seeking information from that limited time period and is not seeking anything

from Moss’ files after MUS’s representation concluded nor seeking anything from

Attorney Moss’ files during the present litigation. Id. at 1, n.1.

The attorney-client privilege generally protects confidential communications

between an attorney and a client made for the purpose of obtaining legal advice. 42

Pa. C.S.A. § 5928. MUS concedes this point but argues PBM has waived this

privilege by instituting this legal malpractice action. ECF No. 42 at 7-10. MUS

argues that this is malpractice lawsuit places the communications of all of the

lawyers at issue in this case. Id.

PBM responds that it has already produced all non-privileged information

from Attorney Moss’ file. ECF No. 41 at 3. PBM also argues it has not put

Attorney Moss’ communications at issue in this case and maintains these

communications are protected by attorney-client privilege. Id. at 4.

Pennsylvania law governs the review of attorney-client privilege here since

this is a diversity case. Sandoz Inc. v. Lannett Co., 570 F. Supp. 3d 258, 263 (E.D.

Pa. 2021). In Pennsylvania, “attorney-client privilege operates in a two-way fashion

to protect confidential client-to-attorney or attorney-to-client communications made

for the purpose of obtaining or providing professional legal advice.” O'Kinsky v.

Perrone, No. CIV.A. 10-6075, 2012 WL 4835316, at *1 (E.D. Pa. Oct. 11, 2012)

(citing Gillard v. AIG Ins. Co., 609 Pa. 65, 15 A.3d 44, 59 (Pa.2011)). See also

Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1424 (3d Cir.

1991) (stating that attorney-client privilege applies “only [to] those disclosures -

necessary to obtain informed legal advice - which might not have been made absent

the privilege”).

The attorney-client privilege protects communications when: (1) the asserted

holder of the privilege is or sought to become a client, (2) the person to whom the

communication was made (a) is a member of the bar of a court, or his subordinate

and (b) in connection with this communication is acting as a lawyer, (3) the

communication relates to a fact of which the attorney was informed (a) by his client

(b) without the presence of strangers (c) for the purpose of securing primarily either

(i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding,

and (d) not for the purpose of committing a crime or tort, and (4) the privilege has

been (a) claimed and (b) not waived by the client. Rhone-Poulenc Rorer, Inc. v.

Home Indem. Co., 32 F. 3d 851, 862 (3d Cir. 1994). See also 42 Pa. C.S.A. § 5928.

The party claiming privilege bears the initial burden of proving the

communication is privileged. BouSamra v. Excela Health, 210 A.3d 967, 982 (Pa.

2019). Once the party has established that privilege applies, the burden shifts to

the seeking party to show that the privilege does not apply or has been waived.

Multiple Energy Techs., LLC v. Under Armour, Inc., No. 2:20-CV-664-NR, 2024 WL

4784112, at *6 (W.D. Pa. Nov. 14, 2024) (citing Martin Marietta Materials, Inc. v.

Bedford Reinforced Plastics, Inc., 227 F.R.D. 382, 390 (W.D. Pa. 2005)).

First, the Parties do not dispute that the communications between PBM as

the client and Attorney Moss as the lawyer are protected by the attorney-client

privilege. ECF No. 41 at 4; ECF No. 42 at 6. See also 42 Pa. C.S.A. § 5928.

Accordingly, the burden shifts to MUS to show the privilege does not apply in this

situation or has been waived. Multiple Energy Techs., 2024 WL 4784112, at *6.

MUS’s arguments are based primarily on case law from other jurisdictions, and it

states that it “is not aware of any precedential Pennsylvania case in this precise

context.” ECF No. 42 at 5. The Court likewise found none.

Applying the rationale from non-binding authority, MUS argues the files

should be produced because: (1) they contain factual information provided by PBM;

(2) no privilege/confidentiality exists between co-counsel; and (3) PBM waived the

attorney-client privilege by filing this legal malpractice action. These arguments

are addressed in turn. Id. at 5-10.

i. Factual Information

MUS first argues that the information is not privileged because MUS “seeks

knowledge of factual information provided by PBM to Attorney Moss and advice

rendered.” ECF No. 42 at 6.

The information MUS is seeking – what PBM presented to Attorney Moss as

its goals for the underlying litigation, and what facts it thought were necessary to

disclose to reach those goals – were given to Attorney Moss for the purposes of

receiving legal advice. As set forth by the United States Supreme Court, attorney

client privilege “exists to protect not only the giving of professional advice to those

who can act on it but also the giving of information to the lawyer to enable him to

give sound and informed advice.” Upjohn Co. v. U.S., 449 U.S. 383, 390 (1981)

(emphasis added). And in Pennsylvania, when the client’s “ultimate goal is legal

advice,” the attorney-client privilege protects “disclosures that are necessary to

obtain informed legal advice which might not have been made absent the privilege.”

Com. v. Noll, 662 A.2d 1123, 1126 (Pa. Super. Ct. 1995) (citing In re Grand Jury

Matter, 147 F.R.D. 82, 84 (E.D.Pa. 1992)).

Courts consistently protect information presented to lawyers from clients,

when, as here, the information was presented for the purposes of receiving legal

advice. See Salvio v. Allegheny Energy, Inc., No. CV 07-742, 2008 WL 11510576, at

*1 (W.D. Pa. Mar. 7, 2008) (protecting attorney report from disclosure even where it

contains factual information because “the fact that the report contains factual

material ‘does not undermine the privilege. Indeed, it is the exact communication of

those facts that enabled counsel to provide legal advice, and the communication of

those facts is privileged.’”) (quoting Upjohn, 449 U.S. at 390); Cedrone v. Unity Sav.

Ass'n, 103 F.R.D. 423, 427 (E.D. Pa. 1984) (“. . . since all communications from a

client to his/her attorney in a professional context are presumptively protected . . .

those parts of her notes that reflect information received from the client are

protected by the attorney-client privilege”).

Accordingly, MUS’s request for “factual information provided by PBM to

Attorney Moss and advice rendered” is DENIED because this information is

privileged.

ii. Co-Counsel

MUS next argues it is entitled to Attorney Moss’ emails because they were

working as co-counsel for PBM. ECF No. 52 at 6. It concedes there are no

precedential Pennsylvania opinions supporting its position but argues that the

Court should adopt the practices of other districts that allow for disclosure between

co-counsel. Id. at 3, 6-8.

First and foremost, it is well established in Pennsylvania that “[w]ithout a

doubt, clients are free to choose, and to change representation at any time.” Huber

v. Etkin, 58 A.3d 772, 781 (PA Super. 2012) (citing Mager v. Bultena, 797 A.2d 948,

956 (Pa. Super. 2002)). It is PBM’s prerogative, as the client, to choose how they

want to use their counsel and how they wish to communicate with them. Forcing

PBM to share information between the two firms would undermine PBM’s ability to

select its own counsel in the underlying litigation.

The Middle District of Pennsylvania also dealt with a similar situation, albeit

in dicta. In EMC Ins. Co. v. Zicolello, a defendant in a legal malpractice action

sought communications between its former client and a subsequent attorney. EMC

Ins. Co. v. Zicolello, No. 4:13-CV-00825, 2014 WL 123687, at *3 (M.D. Pa. Jan. 14,

2014). The Court held that the files remained privileged because it could not

conclude that the firms were actually co-counsel. Id. The Court went on to say,

that “even if the Court concluded that [the firms] were indeed co-counsel and this

arrangement was apparent to Plaintiffs, it does not necessarily follow that these

circumstances would constitute waiver of the privilege. Id. (citing Kroll & Tract v.

Paris & Paris, 86 Cal.Rptr.2d 78, 83 (Cal.App.1999) (holding that waiver of

privilege as to one co-counsel by virtue of filing a malpractice action does not apply

to those co-counsel who were not sued)). The Court finds this persuasive and in-line

with established principles of attorney-client privilege – even if MUS and Attorney

Moss were co-counsel, it does not necessarily mean that MUS is entitled to Attorney

Moss’ file from this time period. MUS’s motion to compel based on these grounds is

therefore DENIED.

iii. Waiver

MUS’s argument on co-counsel tracks closely with its final argument – that

PBM waived attorney-client privilege by bringing this legal malpractice lawsuit

against MUS. ECF No. 42 at 7. MUS further says that the “specific legal question

posed to the Court is whether PBM, in asserting legal malpractice against one

lawyer, may withhold facts provided to and advice rendered by another lawyer

(whether Attorney Moss or others) on the very same subject matter that Plaintiff

has placed ‘at issue’ in this case.” Id. PBM maintains it has not waived its privilege

with Attorney Moss. ECF No. 41 at 3-4.

It is well established that a client waives the attorney-client privilege by

filing a legal malpractice claim. Allstate Ins. Co. v. LaBrum & Doak, No. CIV. A.

88-8448, 1989 WL 38666, at *2 (E.D. Pa. Apr. 18, 1989) (citing Tasby v. United

States, 504 F.2d 332 (8th Cir.1974), cert. denied, 419 U.S. 1125 (1975)). This is a

“subset of the broader principle that ‘waiver of the privilege can occur . . . where a

party voluntarily injects an issue into the case, the truthful resolution of which

requires an examination of the confidential communications.’” In re DiLoreto, No.

9834641F, 2002 WL 34573858, at *8 (Bankr. E.D. Pa. May 3, 2002) (quoting

Jurgensen v. Rolex Watch U.S.A., Inc., 1989 WL 6210, *2 (E.D.Pa.1989)). In a

malpractice action, waiver can either come from the client – in “averments found in

the complaint or in other aspects of the litigation” – or from the defendant, who is

“entitled to disclose confidential information to the extent necessary to establish his

defense to the malpractice action.” Id.

The Parties do not dispute that PBM waived attorney client privilege as to its

communications with MUS by bringing this legal malpractice action against them.

ECF No. 41 at 4; ECF No. 42 at 7. The question is whether PBM’s legal malpractice

lawsuit against MUS also waives its privilege as to communications between PBM

and Attorney Moss. Decisions in this Circuit guide the Court to its decision that

PBM has not waived its privilege between PBM and Attorney Moss.

First, in a legal malpractice action, the Eastern District of Pennsylvania

similarly held a plaintiff did not waive privilege with his former lawyer because the

plaintiff “has not filed a claim against attorney Kaplan, but against defendant

attorneys and parties, unaffiliated with Mr. Kaplan.” O'Kinsky v. Perrone, No.

CIV.A. 10-6075, 2012 WL 4835316, at *1 (E.D. Pa. Oct. 11, 2012). The Court held

the conversations were privileged even though they were “regarding the transaction

which is the subject of this legal malpractice action” – i.e., relevance alone was not

enough to overcome the privilege. And, as set forth above, the Middle District of

Pennsylvania stated that because a plaintiff did not file a lawsuit against one of its

attorneys or “attack his competence, there is no basis for the Court to find that

Plaintiffs waived the privilege regarding confidential communications” between

Plaintiffs and that attorney. EMS, 2014 WL 123687, at *2.

MUS has presented a number of cases from other district courts throughout

the country on the subject of waiver. ECF No. 42 at 7-10. However, the Court finds

the rationale of the cases cited from Pennsylvania district courts above to be more

persuasive and in line with established principles of attorney-client privilege. In so

doing, the Court determines that PBM has not waived its privilege with respect to

Attorney Moss by filing a legal malpractice action against MUS. Accordingly,

MUS’s Motion to Compel the production of Attorney Moss’ file on these grounds is

DENIED.

iv. Privilege Log

PBM must produce a privilege log for the documents it is withholding as

privileged from Attorney Moss’ file.

Federal Rule of Civil Procedure 26 states that “When a party withholds

information otherwise discoverable by claiming that the information is privileged”

the party must “describe the nature of the documents, communications, or tangible

things not produced or disclosed – and do so in a manner that, without revealing the

information itself privileged or protected, will enable other parties to assess the

claim.” FRCP 26(b)(5)(A). See also Graham v. Progressive Direct Ins. Co., No. CV

09-969, 2010 WL 11469535, at *4 (W.D. Pa. Nov. 1, 2010) (“Rule 26(b)(5)(A)(ii)

requires that a party raising a privilege as a defense to production do so in a

privilege log”).

Based on the Parties’ briefing, it appears that PBM has not produced a

privilege log. Accordingly, by September 28, 2026, it is ORDERED that PBM shall

produce a privilege log for the documents it is withholding as privileged Attorney

Moss’ file in accordance with Federal Rule of Civil Procedure 26(b)(5)(A).

IV. Conclusion

For the reasons stated above, MUS’s Motion to Compel is granted in part and

denied in part:

• MUS’s request for documents related to Smithfield’s defenses in the

underlying action is granted. PBM shall produce these documents by

September 28, 2026.

• MUS’s request for Attorney Moss’ file is denied, as the documents are

protected from disclosure by attorney client privilege.

• PBM shall produce a privilege log in accordance with Federal Rule of

Civil Procedure 26(b)(5)(A) by September 28, 2026.

DATED this 28th day of August, 2026.

BY THE COURT:

s/Christopher B. Brown

United States Magistrate Judge

CC: All counsel of record, via ECF