I. INTRODUCTION

*1 Before the Special Master is Nominal Defendant and Counterclaim-Plaintiff Thomas E. Mackell, M.D., Ltd. d/b/a Bucks County Orthopedic Specialists' (“BCOS”) Motion to Compel Discovery (the “Motion”). (Doc. # 355.) The issue in this Motion is whether a single document withheld by Plaintiff Robert Handy (“Plaintiff” or “Dr. Handy”) is entitled to protection from discovery under the work product doctrine. For the reasons set forth below, the Special Master recommends that the Motion be granted.

II. BACKGROUND

In response to BCOS' request for the production of documents, Dr. Handy produced a privilege log describing documents withheld from production based on the attorney-client privilege and work product doctrine. (Doc. # 355-3, Exhibit 1.) After a meet-and-confer among counsel regarding the privilege log, Dr. Handy produced three documents initially withheld and listed in the privilege log, but he refused to produce one disputed document, identified as “Document No. 16.” (Doc. # 355-1, Mem. at 2.)

Dr. Handy subsequently produced a revised privilege log. (Doc. # 355-6, Exhibit 4.) Regarding Document No. 16, the revised privilege log removed the attorney-client privilege as a basis for withholding the document and identified “work product” as the only applicable “privilege.” Id. The revised privilege log also added a column for a “Privilege Note.” Id. For Document No. 16, the privilege note added only: “Communication containing work product.” Id.

Document No. 16 is a communication dated March 10, 2018 from Kevin Handy to Dr. Handy and Maria Halluksa. Id. Kevin Handy is Dr. Handy's brother. Kevin Handy is an attorney; whether he was Dr. Handy's attorney for purposes of the work product doctrine is an issue in this Motion. Maria Halluska is Dr. Handy's sister-in-law.

Faced with Dr. Handy's refusal to produce Document No. 16, BCOS filed a Motion to Compel the Discovery, seeking an order for the production of Document No. 16. (Doc. # 355.) The Court referred the Motion to the Special Master for Report and Recommendation. (Doc. # 363.) The Special Master has considered all papers associated with the Motion (Doc. Nos. 355, 360, 362, 367, and 369).

III. THE SPECIAL MASTER'S ANALYSIS

A. Work Product Doctrine

The sole basis for Dr. Handy's refusal to produce Document No. 16 is the work product doctrine. (Doc. # 355-6, Exhibit 4.) Under Fed. R. Civ. P. 26(b)(3)(A), “a party may not discover 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).” The work product doctrine “is designed to protect material prepared by an attorney acting for his client in anticipation of litigation.” United States v. Rockwell International, 897 F.2d 1255, 1265 (3d Cir. 1990). “A document is prepared in anticipation of litigation if ‘the nature of the document and the factual situation in the particular case’ establishes ‘the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” Faloney v. Wachovia Bank, N.A., 254 F.R.D. 204, 214 (E.D. Pa. 2008) (Rice, M.J.) (quoting Rockwell, 897 F.2d at 1266). “The party seeking the protection has the burden of proving the doctrine applies.” Mine Safety Appliances Co. v. North River Insurance Co., 73 F. Supp. 3d 544, 569 (W.D. Pa. 2014) (Cercone, J.).

*2 In this analysis, “the motivating purpose behind the creation of the document” is significant. SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 473 (E.D. Pa. 2005) (Surrick, J.). “Generally, a reasonable anticipation of litigation requires existence of an identifiable specific claim or impending litigation at the time the materials were prepared.” Id. (citations omitted). An attorney's advice “about matters which may or even likely will ultimately come to litigation,” however, “does not satisfy the ‘in anticipation of’ standard.” Id. “The threat of litigation must be more imminent than that.” Id.

B. Attorney-Client Relationship

The work product doctrine protects documents created in anticipation of litigation by a party or certain other representatives. Fed. R. Civ. P. 26(b)(3)(A). Dr. Handy argues that Document No. 16 is protected under the work product doctrine “because it is a communication with an attorney regarding anticipated litigation.” (Doc. # 360-2, Opp. at 5.) More than “an attorney,” the preparer must be the “party's attorney”; thus, there must be an attorney-client relationship for the work product doctrine to apply. Fed. R. Civ. P. 26(b)(3)(A); see Rockwell, 897 F.2d at 1265 (protecting “material prepared by an attorney acting for his client”).

There is no suggestion that an express attorney-client relationship between Dr. Handy and Kevin Handy existed. An implied attorney-client relationship is established when “(1) the purported client sought advice or assistance from the attorney; (2) the assistance sought was within the attorney's professional competence; (3) the attorney expressly or impliedly agreed to provide such assistance; and (4) it is reasonable for the putative client to believe that the attorney was representing him.” Capitol Surgical Supplies, Inc. v. Casale, 86 F.App'x 506, 508 (3d Cir. 2004).[1]

Here, Dr. Handy has not established that he had an implied attorney-client relationship with Kevin Handy. Dr. Handy testified that he “would never think of [Kevin Handy and his sister] as, quote/unquote, my attorneys. I think of them as my brother and sister.” (Doc. 355-4, Exhibit 2, Dep. Tr. at 142; see also id. at 140 (“... I have two siblings who are lawyers who I've asked questions to. I have friends who are lawyers who I asked questions to. Not that they are my lawyers.”).

Dr. Handy argues that he did “seek legal advice from Kevin Handy” by referring to his deposition testimony that he did not pay Kevin Handy, but he did “ask him legal questions.” (Doc. # 360-2, Opp. at 6; Doc # 360-6, Ex. C, Dep. Tr. at 232.) But seeking legal advice is just one element necessary to establish an implied attorney-client relationship. Capitol Surgical, 86 F.App'x at 508. Nothing in Dr. Handy's submission establishes Kevin Handy's competence, his express or implied agreement, or Dr. Handy's reasonable belief that Kevin Handy was representing him. Indeed, Dr. Handy's testimony noted above demonstrates that he did not believe Kevin Handy was representing him. Additionally, Dr. Handy retained counsel in this action, and he retained a separate attorney to write a letter to BCOS related to his allegations of discrimination for his miliary service. (Doc # 360-6, Ex. C, Dep. Tr. at 231-32.) Thus, the facts are insufficient to establish the necessary attorney-client relationship.

*3 Dr. Handy also contends that “mental impressions other than that of a lawyer's are still protected.” (Doc. # 367, Suppl. Mem. at 2.) Dr. Handy provides no explanation or authority for how or why Kevin Handy's relationship with Dr. Handy qualifies for protection under the work product doctrine, if it is not based in an attorney-client capacity.

Because Dr. Handy has not established that he formed an attorney-client relationship with Kevin Handy, and because no other representative relationship under Fed. R. Civ. P. 26 applies, the work product doctrine does not shield Document No. 16 from disclosure.

C. In Anticipation of Litigation

Even if Kevin Handy was Dr. Handy's attorney, to qualify to work product protection, the document withheld must have been “prepared in anticipation of litigation.” Fed. R. Civ. P. 26(b)(3)(A). Dr. Handy contends that a temporal connection between the withheld email and litigation establishes that Document No. 16 was prepared in anticipation of litigation, i.e, the email was sent two months before a demand letter went to the BCOS Board on behalf of Dr. Handy and six months prior to Dr. Handy's case filed in the Pennsylvania Court of Common Pleas (the “Bucks County Action”). (Doc. # 260-2, Opp. at 7-8.) BCOS contends that the timing of the email is insufficient to establish the connection between the email and the later litigation and that Dr. Handy has failed to meet his burden. (Doc. # 355, Mem. at 4-5; Doc. # 362, Reply Mem. at 4-6.).

Dr. Handy's privilege log provided insufficient information to fully evaluate whether the document was protected from production under the work product doctrine. Thus, the Special Master requested and reviewed Document No. 16 in camera as part of his consideration. Based on this in camera review, nothing in Document No. 16 suggests that “the motivating purpose behind the creation of the document” was the anticipation of litigation. SmithKline Beecham, 232 F.R.D. at 473. There is no reference to “an identifiable specific claim or impending litigation.” Id. (citations omitted).

Considering the broader context of litigation that later arose and the related timing does not establish that Document No. 16 meets the work product standard. As indicated by the subject line, the email was primarily about financial issues and not a legal claim. Though there may have been some possibility of litigation at that time, the content and context of the email do not suggest a sufficiently imminent threat to establish that Document No. 16 was prepared in anticipation of litigation. Id. (noting that “matters which may or even likely will ultimately come to litigation” do not satisfy the standard). The fact that it was not Kevin Handy, but a different attorney, who sent the Demand Letter two months later and filed the Bucks County Action six months later buttresses the conclusion that Kevin Handy's email was not prepared “because of the prospect of litigation.” Faloney, 254 F.R.D. at 214.

The party seeking work product protection carries the burden of proving the doctrine applies. Mine Safety, 73 F. Supp. 3d at 569. Accordingly, based on the Special Master's in camera review of the document and the attendant circumstances, Dr. Handy has failed to meet his burden that Document No. 16 was prepared in anticipation of litigation.

IV. RECOMMENDATION

For the reasons set forth above, the Special Master recommends that BCOS' Motion to Compel (Doc. # 355) be GRANTED.

*4 Respectfully submitted,

James J. Rohn, Esq., Special Master

AND NOW, this ____ day of ________, 2024, based upon the February 27, 2024 Report and Recommendation of the Special Master, it is hereby ORDERED that: