Southersby Dev. Corp. v. Borough of Jefferson Hills
Southersby Dev. Corp. v. Borough of Jefferson Hills
2011 WL 5509445 (W.D. Pa. 2011)
September 13, 2011
Gibbons, Charles B., United States District Judge
Summary
The Borough of Jefferson Hills submitted an Amended Privilege Log with 573 documents, many of which were emails. The Special Master determined that the Borough was entitled to object and assert privilege, but emails from the Murphys, Southersby attorneys and engineer, third parties, and Borough employees were not privileged. The motion to compel production of documents was granted in part and denied in part.
SOUTHERSBY DEVELOPMENT CORPORATION, Plaintiff,
v.
BOROUGH OF JEFFERSON HILLS, and William L. McVicker, in his individual and official capacity, Defendants
v.
BOROUGH OF JEFFERSON HILLS, and William L. McVicker, in his individual and official capacity, Defendants
Civil Action No. 09–208
United States District Court, W.D. Pennsylvania
September 13, 2011
Counsel
Paul R. Robinson, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, PA, Carmee G. Murphy, Sewickley, PA, for Plaintiff.Jeffrey D. Truitt, Suzanne B. Merrick, Thomas, Thomas & Hafer, LLP, Philip J. Sbrolla, Carolyn C. Batz, Mark R. Hamilton, Cipriani & Werner, P.C., Pittsburgh, PA, for Defendants.
Gibbons, Charles B., United States District Judge
REPORT AND RECOMMENDATION OF THE SPECIAL MASTER
*1 By Order of Court dated August 2, 2011 (Hon. Maureen P. Kelly, Magistrate Judge), the undersigned was appointed Special Master to review, inspect and report to the Court on the propriety of the production of documents sought by Plaintiff Southersby Development Corporation (“Southersby”) and resisted by Defendant Borough of Jefferson Hills (“Borough”) on grounds of attorney-client privilege and the work product doctrine.
I reviewed the Amended Complaint and Answer, Southersby's Motion to Compel and its attachments,[1] the Borough's brief in opposition as well as the cases cited by each party. Additionally, I met with counsel for the parties on August 23, 2011 to get a further explanation of their respective positions and undertook my own legal research.
The Borough has submitted an Amended Privilege Log which is 51 pages in length and lists 573 documents at issue. Many of the 573 documents consists of multiple pages containing a number of emails (“email threads”). The Borough asserts privilege for what I conservatively estimate to be approximately 3,000 emails.[2]
Included among these documents were emails to the Borough from: Ann and Tim Murphy (who appear to be the principals of Southersby) (see, e.g., Document Nos. JH0057, JHO071, JHO080, JH00256, JH0315, JH0322), the Southersby attorneys and engineer (see, e.g., Document Nos. JHO050, JH0055, JH0536, JH0557, JH0586, JH0605) and third parties such as other developers and the Columbia Gas Company (see, e.g., Document Nos. JH0233, JH0413, JH0427, JH0445, JH0448).[3]
Emails from and to the Murphys seek information, request meetings or level criticisms and complaints (by the Murphys against the Borough). The Southersby attorneys used email to communicate with the Borough Solicitors. The third party emails cover a variety of topics wholly unrelated to this litigation. The notion that any of the foregoing was even arguably privileged is, as Learned Hand once wrote, a proposition too extravagant to be maintained.
Close examination of the text of the forgoing types of emails reveals nothing even remotely implicating either the attorney-client privilege or work product doctrine.
Given this patent lack of privileged communications, one is left to conclude that the Borough withheld hundreds of emails simply because somewhere in the email thread its Solicitors (Attorneys Mike Adams and Bill Shimko): (i) were shown as copied or (ii) generated emails of their own.
But the mere fact that an attorney is copied on a document does not mean that the communication is necessarily privileged. U.S. Postal Service v. Phelps Dodge Refining Corp., 852. F.Supp. 156 (E.D.N.Y.1994). The Borough cannot insulate its files from discovery simply by sending a “cc” to its Solicitors.[4]
The Borough admits,[5] and in-camera review confirms, that no redaction of these documents was ever done. This, of course, is contrary to both the letter and the spirit of Fed.R.Civ.P. 34.
*2 Where an email thread contained both privileged and non-privileged communications,[6] the Borough was entitled to object, assert its claim of privilege and redact what it reasonably believed to be the privileged communication(s). But the Borough was also obliged to produce those parts of any document not within the ambit of privilege, admittedly a most tedious and time-consuming task ultimately performed by the Discovery Master.
At the August 23, 2011 conference, the Borough did offer to undertake redaction, Southersby objected, saying the matter was now in the hands of the Court and the Discovery Master. I determined Plaintiffs objection was well-founded and did not accept the Borough's offer. It is now rather late in the day to offer to undertake that which should have been done many months earlier before motions, briefings and submission of two overly broad privilege logs.
If the Borough had proceeded to redact in accordance with its own mistaken notions of privilege, the matter would simply drag out to a later date of Court scrutiny.
Moreover, to accede to the Borough's offer would be contrary to the explicit direction of the Magistrate Judge's Order that “[t]he Special Master is hereby directed to conduct an in-camera review of the alleged privileged documents ...” (Order Appointing Special Master at page 1).
There is, of course, a tension between the principle that the reasons and bases of government action should be transparent and the right of the Borough to use the assistance of legal counsel in much the same way as any business or individual. Thus, a closer question involves communications to and from (i) the Borough's consulting engineers, The Gateway Engineers, Inc.,[7] and (ii) various Borough employees. Some of these emails simply set forth the engineer's findings or opinion of a particular matter involving the Plaintiffs housing development. In context, these communications are factual obtained from sources other than the client, and, therefore, cannot be said to be made by a client to an attorney in confidence for the purpose of obtaining legal advice and assistance. Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 483 (E.D.Pa.1962).
It well may be that this engineering information was ultimately useful to the Borough Solicitors in dealing with Southersby. The purpose of the attorney-client privilege, as Judge Leval wrote:
[I]s “to encourage clients to make full disclosure to their attorneys.” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39, S.Ct. 1569, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). To that end, the privilege protects communications between a client and an attorney, not communications that prove important to an attorney's legal advice to a client. Thus, a communication between an attorney and client may be privileged even if it turns out to be unimportant to the legal services provided. See 8 Wigmore on Evidence § 2292, at 554 (McNaughton rev. ed.1961) (listing essential elements of privilege); Scott N. Stone & Robert K. Taylor, 1 Testimonial Privileges §§ 1.24–1.35 (2d ed.1995) (discussing scope of privilege). Conversely, a communication between an attorney and a third party does not become shielded by the attorney-client privilege solely because the communication proves important to the attorney's ability to represent the client. See Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ...
*3 United States v. Ackert, 169 F.3d 136, 139 (2d Cir.1999).
Likewise, everyday communications between Borough employees concerning Southersby do not merit protection where it is obvious from the context that the communication is not for the purpose of obtaining legal advice and assistance.
There are also a significant number of privileged emails from Borough employees and its consulting engineers which were sent or copied to the Solicitors for the explicit purpose of getting the lawyers' advice, input and comments. The privilege, of course, extends to the attorney's legal advice and opinions which encompass to thoughts and confidences of the client. United States v. United Shoe Machinery Corp., 89 F.Supp. 357 (D.Mass.1950).
Attached hereto is a copy of Defendant's Amended Privilege Log which I have modified with a recommendation as to each document in question. As a result, my recommendation is that Plaintiffs motion to compel production of documents be granted in part and denied in part.
Footnotes
(1) First Set of Interrogatories and Request for Production of Documents Directed to Defendant; (2) correspondence between counsel; (3) Privilege Log (April 13, 2011); (4) original Motion to Compel; (5) Amended Privilege Log (June 22, 2011).
The Borough delivered the documents for in-camera review on August 9, 2011.
The examples listed are merely representative of numerous documents to be found throughout the email threads.
Jefferson Hills routinely copied its Solicitors on practically everything.
At the August 23, 2011 conference, counsel for the Borough Attorney Suzanne Merrick said Defendant had not redacted any documents.
See, e.g., Document Nos. JH0074, JH0193, JH0056, JH0606, JH0571.