*1 Defendant Keith Hudson (“Hudson”) has filed a motion for relief from a stipulated protective order. Plaintiff Wesley College (“Wesley”) has opposed this motion. For the reasons below, Hudson's motion will be granted.

This case stems from a civil action filed in Delaware Chancery Court by Hudson against Wesley College for breach of employment contract (“the state case”). After certain revelations made by Hudson in his civil case, Wesley filed an action of its own in this Court (“the federal case” or “the federal action”), alleging violations of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2501, 2701, et seq., and Delaware state law.[1]

In the federal case on September 25, 1996, this Court entered a Stipulated Protective Order (“the Order”). Docket Item (“D.I.”) 80. Pursuant to the Order, any party could, in good faith, designate in writing any document as Confidential. Id. at ¶ 1. Once designated confidential, material could only be used in the federal case. Id. at ¶ 6.[2]The Order also provided that any party could petition this Court for relief if it objected to the designation of any material as Confidential. Id. at ¶ 4. “Designation of any documents or information as Confidential Material shall not create any presumption for purposes of ruling on [the objection],” the Order explained. “[N]or shall it shift the burden of establishing that the Confidential Material has been properly designated.” Id.

Hudson has objected to Wesley's designation of two documents as Confidential: (1) a four-page police report prepared by an investigating officer at the Dover Police Department, and (2) a copy of a one-page electronic mail (“e-mail”) message dated February 15, 1995 and purportedly written by the President of Wesley College, Reed Stewart. Hudson vows to use these documents in the state case to refute Wesley's assertion that Hudson was terminated for purely economic reasons.[3] Wesley, of course, wants to maintain the Confidential status of these two documents. To complicate matters, the second document—the one-page e-mail—is at the heart of the federal case: One of Wesley's allegations is that Hudson and two other former employees of Wesley intercepted the e-mail and disclosed its contents in violation of the ECPA.

Hudson wants to use the February 15, 1995 e-mail in the state case. Wesley advances three main arguments in opposition to Hudson's motion and his intended use of the February 15 e-mail. Wesley's first argument is that using the e-mail as evidence in the state case can subject Hudson to further liability under the ECPA. See In re Grand Jury, 111 F.3d 1066, 1077–78 (3d Cir.1997) (holding that disclosure of intercepted communications in compliance with subpoena duces tecum would be a violation of § 2511(1)(c)); Poulos, 11 F.3d at 288 (holding that illegal interceptions cannot be introduced into evidence for impeachment purposes in civil cases). The ECPA prohibits any person from using or disclosing the contents of any electronic communication that person knows or has reason to know was intercepted in violation of Title I of the ECPA. 18 U.S.C. § 2511(1)(c) & (d). Accordingly, Wesley urges, the February 15, 1995 e-mail should remain designated Confidential under the Order.

*2 This argument is misplaced. As discussed in the companion to this opinion granting summary judgment in favor of Hudson, there is no evidence presently before the Court that Pitts intercepted the February 15, 1995 e-mail in violation of the ECPA; thus, Hudson cannot be held liable for using the February 15, 1995 e-mail in connection with the state case.

Wesley's remaining principal arguments are equally unpersuasive. Wesley asserts Hudson should not be released from the Order because he consented to its restrictions and Wesley and its employees relied upon that consent. But this ignores the provision of the Scheduling Order which permits any party to do what Hudson has done here—challenge in a timely manner the designation of material as Confidential. Hudson did not consent to bind himself irrevocably to the way Wesley classified its documents.

Wesley also argues the February 15, 1995 e-mail (and perhaps the police report) is confidential work-product and thus immune from discovery under Rule 26(b)(3) of the Federal Rules of Civil Procedure. It would be absurd, of course, to label the police report the work product of Wesley. As for the e-mail, authored by Stewart, it was disseminated to several employees of Wesley college and Stewart's wife. Therefore, while it arguably contains the mental impressions, theories, and opinions of litigation of Stewart (a representative of Wesley), see National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 986 (4th Cir.1992) (“work product need not be the direct product of an attorney”), it is not protected work-product under Rule 26(b)(3). Further, Wesley produced the e-mail for use in the federal case without a squawk about privilege or work product; the Order says nothing about privileged materials or work product, it only addresses confidential materials. Wesley can hardly cry foul now over the designs Hudson has for the e-mail in the state case.

Finally, it was Wesley, not Hudson, who introduced the hard copy of the February 15 e-mail into the summary judgment record in the federal case against Hudson and his two co-defendants. In fact, there is no evidence Hudson even saw a hard copy of the e-mail until it was shown to him by Wesley at his deposition. In sum, Wesley wants to wield the e-mail as a rapier in the federal action and then blithely sheathe it from view in the state case. But such one-sided swordsmanship is not permitted. After injecting the e-mail into the federal case it brought against Hudson, and the subsequent use of that e-mail in a judicial opinion, which will be a public record, Wesley can hardly be heard to complain the e-mail should remain classified as “Confidential.” Hudson will be granted relief from the Order with respect to the February 15, 1995 e-mail.

Wesley has offered no persuasive reason the police report should remain designated Confidential. Accordingly, Hudson will also be granted relief from the Order with respect to the police report. An appropriate order will issue.

A description of the factual background and legal proceedings in this case can be found in a companion opinion issued this date regarding a motion for summary judgment brought by Hudson and a co-defendant, Bettina Ferguson.

The Order provided:

Hudson initially filed a motion to compel the production of these documents in the state case. Vice Chancellor Myron T. Steele, citing the Order in the federal case, stayed a decision on the motion to compel. Trial on the state case ensued on March 3, 1997, then was stayed to allow Hudson an opportunity to supplement the evidentiary record with the police report and the February 15, 1995 e-mail. This motion followed.