I. INTRODUCTION

*1 This class-action suit involves claims of racial discrimination against guests of the Sesame Place Philadelphia amusement park (“Sesame Place”), operated by Defendants SeaWorld Parks & Entertainment, Inc. and SeaWorld Parks & Entertainment, LLC (collectively, “SeaWorld” or “Defendants”). Specifically, Plaintiffs allege that costumed SeaWorld employees, performing as various Sesame Street characters refused to interact with Black and Hispanic children at Sesame Place events, opting to interact with White children instead.

Now before the Special Master is non-Party Debo P. Adegbile's Motion to Quash Plaintiff's Subpoena. (Doc. 67). After reviewing all relevant filings, for the reasons set forth below, the Special Master recommends that the Court grant Mr. Adegbile's Motion to Quash.

II. FACTS AND PROCEDURAL HISTORY

Plaintiffs initiated this action via Complaint filed July 27, 2023. (Doc. 1). On September 28, 2023, Plaintiffs filed an Amended Complaint, asserting a claim for racial discrimination under 42 U.S.C. § 1981 (“Section 1981”), along with state law negligence claims. (Doc. 25). On June 5, 2023, the Court dismissed Plaintiffs’ negligent hiring and negligent training claims with prejudice and dismissed Plaintiffs’ negligent supervision claim without prejudice.[1] (Doc. 48). The Court permitted Plaintiffs to proceed on their Section 1981 claim, as well as on their state law negligence per se claim, which is premised upon Defendants’ alleged violations of Section 1981.

On August 9, 2023, Plaintiffs served a subpoena for testimony and documents on Mr. Adegbile. (Doc. 67, Ex. 3). Mr. Adegbile is a member of the New York Bar and is a partner of the law firm Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”), and chair of its Anti-Discrimination Practice. (Doc. 67, Ex. 2). Defendants retained Mr. Adegbile and his firm as outside counsel on September 7, 2022. On September 22, 2023, Mr. Adegbile filed a Motion to Quash the subpoena, arguing that it seeks irrelevant and/or privileged information. (Doc. 67). Plaintiffs filed a Response on September 29, 2023. (Doc. 75). On October 3, 2023, the Court referred Mr. Adegbile's Motion to Quash to the Special Master.[2] (Doc. 80). Mr. Adegbile filed a Reply on October 6, 2023. (Doc. 84).

III. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 26(b)(1), the scope of discovery is “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”

A. Attorney-Client Privilege

“The attorney-client privilege protects: ‘(1) communications (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.’ ” Utesch v. Lannett Company, 2020 WL 7260775, at *4 (E.D. Pa. Dec. 9, 2020) (Beetlestone, J.) (quoting In re Chevron Corp., 650 F.3d 276, 289 (3d Cir. 2011)). Although such communications are often relevant and highly probative of the truth, they are protected in order to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and administration of justice. In re Grand Jury Subpoena, 745 F.3d 681, 687 (3d Cir. 2014). The attorney-client privilege “rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out.” Upjohn Co. v. United States, 449 U.S. 383, 398 (1981). However, because the attorney-client privilege “is at the expense of the full discovery of the truth, it should be strictly construed.” U.S. v. Doe, 429 F.3d 450, 453 (3d Cir. 2005). “The party claiming that evidence is subject to the attorney-client privilege bears the burden of establishing the privilege.” Sullivan v. Warminster Twp., 274 F.R.D. 147, 150 (E.D. Pa. 2011) (Surrick, J.).

B. Relevance

*2 Relevancy is “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.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).

Pursuant to Rule 45(d)(3), a Court must quash or modify a subpoena “if it requires disclosure of privileged or other protected matter, if it risks unfair prejudice to persons who are the subject of a subpoena's commands or subjects a party to an undue burden.” ITOCHU Intern. Inc. v. Devon Robotics, LLC, 303 F.R.D. 229, 232 (E.D. Pa. 2014) (Joyner, J.) (internal citations omitted); Fed. R. Civ. P. 45(d)(3)(A). “The subpoenaing party bears the initial burden of demonstrating the requested discovery is relevant, as defined by Rule 26.” Lejeune, G. v. Khepera Charter School, 2018 WL 11355517, at n. i (E.D. Pa. April 9, 2018) (Beetlestone, J.) (internal citations omitted). The “standards for non-party discovery require a stronger showing of relevance than for party discovery.” Zukoski v. Philadelphia Elec. Co., 1994 WL 637345, at *3 (E.D. Pa. Nov. 14, 1994) (VanArtsdalen, J.); see also, S.G. v. West Willow Fire Co., 2017 WL 11550403, at *3 (E.D. Pa. June 28, 2017) (Leeson, J.) (“where the relevancy of the information is in doubt, the fact that the discovery is sought from a non-party supports the finding that the material is not subject to discovery”).

If the subpoenaing party shows the requests are relevant, the burden then shifts to the challenging party to either contest relevance or show that the request is overbroad.” Id. (internal citations omitted). “When applying Rule 45, courts must balance several competing factors: (1) relevance, (2) need, (3) confidentiality, and (4) harm.” S.R. by & through next friend Rosenbauer v. Pennsylvania Dep't of Hum. Servs., 2020 WL 2539199 at *2 (E.D. Pa. May 19, 2020) (Alejandro, J.) (citing Mannington Mills In. v. Armstrong World Indus., Inc., 206 F.R.D. 535, 529 (D. De. 2002)). “Even if the information sought is relevant, discovery is not allowed where no need is shown, or where compliance is unduly burdensome, or where potential harm caused by production outweighs the benefit.” In re Domestic Drywall Antitrust Litig., 300 F.R.D. at 239. “A court should be particularly sensitive to weighing the probative value of the information sought against the burden of production on a nonparty.” Id. (quoting Fears v. Wilhelmina Model Agency, Inc., 2004 WL 79185, at *1 (S.D.N.Y. Apr. 1, 2004)).

IV. THE SPECIAL MASTER'S ANALYSIS

A. Attorney-Client Privilege

Plaintiffs do not dispute that Mr. Adegbile is an attorney and that Defendants were his clients. Nor do Plaintiffs dispute that Mr. Adegbile advised Defendants in confidence. Instead, Plaintiffs suggest that Dr. Adegbile's advice was not legal in nature and that, therefore, he is “a fact witness who can be deposed about non-privileged matters.” (Doc. 75 at 7). Plaintiffs characterize Mr. Adegbile's declaration that “[c]ommunications between [Defendants] and WilmerHale were and are for the purpose of obtaining or rendering legal advice” as “wholly conclusory”. (Doc. 67, Ex. 2); (Doc. 75 at 8).

*3 Plaintiffs cite to a number of cases standing for the proposition that the “primary purpose” of a privileged communication must be “to gain or provide legal assistance.” (Doc. 75 at 7) (quoting Southeastern Pennsylvania Transportation Authority v. CaremarkPCS Health, L.P. (“SEPTA”), 254 F.R.D. 253, 258 (E.D. Pa. 2008) (Restrepo, J.)). Notably, however, each of the cases cited by Plaintiffs involves communications with in-house counsel. See generally SEPTA (regarding discovery of e-mail strings, memoranda, and draft documents sent between defendant's employees and in-house counsel); see also Kramer v. Raymond Corp., 1992 WL 122856 (regarding discovery of the minutes of defendant's in-house “Corporate Product Liability Management Team”); see also Barr Marine Products, Co. Inc. v. Borg-Warner Corp., 84 F.R.D. 631 (E.D. Pa. 1979) (Lord, J.) (regarding discovery of communications defendant's employees and its in-house general counsel).

The cases relied upon by Plaintiff solely concern communications with in-house counsel for a simple reason. “Because in-house counsel may play a dual role of legal advisor and business advisor”, accordingly, when analyzing communications with in-house counsel, courts must determine whether the communication's “primary purpose is to gain or provide legal advice.” See Kramer, 1992 WL 122856, at *1; see also SEPTA, 254 F.R.D. at 258 (“[t]he primary purpose of the communication at issue must be to gain or provide legal assistance for the privilege to apply due to the fact that in-house counsel may play a dual role of legal advisor and business advisor”) (emphasis added). There is no such concern with regards to outside counsel, who do not play the “dual role of legal advisor and business advisor.” Accordingly, communications between a client and outside counsel may be presumed to be for the giving and receiving of legal advice. See Hartman v. Banks, 1995 WL 453737, at *2 (E.D. Pa. July 26, 1995) (Pollak, J.) (holding that regarding letters between a corporation and its outside counsel, “it can be assumed in this context that they were written with the purpose of providing legal assistance”).

Here, Defendants retained Mr. Adegbile to provide counsel regarding discrete issues—civil rights and anti-discrimination initiatives at Sesame Place. This is Mr. Adegbile's area of expertise, and he is the chair of a practice group on that subject at a large law firm. There is nothing to suggest that Mr. Adegbile was retained to act as Defendants’ outside general counsel and play the “dual role of legal advisor and business advisor.” Courts have held that communications with outside counsel fulfilling roles similar to Mr. Adegbile are privileged. See Ziner v. Cedar Crest College, No. 34, 04 CV 3491, at 5 (E.D. Pa. May 30, 2006) (Smith, M.J.) (holding that communications between college and employment law attorney retained to investigate complaints of employment discrimination were privileged).

Moreover, even supposing Mr. Adegbile did provide business advice of some sort, the documents sought by Plaintiffs unquestionably concern Mr. Adegbile's role as a legal advisor. (See Doc. 67, Ex. C) (subpoenaing documents relating to “advice ... concerning diversity, equity, and inclusion matters”; “consultations ... concerning ways to eliminate racial discrimination by [Defendants’] employees”; “consultations ... concerning training and supervision and on how to identify and address implicit bias, unconscious bias and micro-aggression as it relates to race discrimination and how [Defendants’] employees can better interact with park guests; and an “equity review/civil audit” or “comprehensive racial equity assessment.”). Plaintiffs do not, and cannot, argue that these topics are non-legal in nature. After all, these topics are at the heart of this litigation.

*4 Plaintiffs correctly note that the attorney-client privilege “does not protect disclosure of the underlying facts by those who communicated with the attorney”. (Doc. 75 at 6) (quoting Upjohn, 449 U.S. at 395). However, this well-established axiom has no bearing upon the issue at hand. Without question, Plaintiffs were entitled to seek disclosure of underlying facts from Defendants. Defendants could not withhold such facts merely because they were communicated to Mr. Adegbile. However, Plaintiffs are not entitled to the disclosure of Mr. Adegbile's privileged communications with his clients. See id. at 396 (holding that, “[w]hile it would probably be more convenient for the government to secure the results of a [defendant's] internal investigation by simply subpoenaing the questionnaires and notes taken by [defendant's] attorneys”, those documents were protected by the attorney-client privilege—but noting that, “the Government was free to question the employees who communicated with [defendant's] counsel”).

Nevertheless, Plaintiffs argue that the Court can only assess Mr. Adegbile's claims of privilege “by an in-camera review of every document for which he claims privilege.” (Doc. 75, at 8). Plaintiffs position appears to be that a subpoenaing party is entitled to compel a document-by-document in-camera review of the entirety outside counsel's file, without pointing to any evidence to call into question outside counsel's sworn declaration that the contents of the file are entirely privileged. This approach is obviously impractical and ripe for abuse. Furthermore, requiring in-camera review in such circumstances would discourage “full and frank communications between attorneys and their clients” and thereby subvert the policy basis for the attorney-client privilege. See In re Teleglobe, 493 F.3d 345 at 359 (3d Cir. 2007) (“the [attorney-client] privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client”).

B. Relevance

Plaintiffs do not specifically address Defendant's objections to the relevancy of the requested information, instead adopting and incorporating their Opposition to Non-Party Sadiqa Reynolds’ Motion to Quash Plaintiffs’ Subpoena. (Doc. 75, at 9). The Special Master understands this argument to be that the subpoenaed information is relevant to Plaintiffs’ dismissed negligent supervision claim.[3]

As the Special Master noted in her Report and Recommendation addressing Ms. Reynolds's Motion to Quash (Doc. 89), Plaintiffs’ negligent supervision claim remains dismissed, and Plaintiffs have not sought leave to amend—despite expounding at length upon the merits of the claim. The law is clear: discovery of a matter relevant only to dismissed claims is improper. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (“it is proper to deny discovery of a matter that is relevant only to claims or defenses that have been stricken, unless the information is otherwise relevant to issues in the case”).

To the extent the information sought by Plaintiffs’ subpoena is in any way relevant to Plaintiffs’ remaining claims, it is far outweighed by Plaintiffs’ lack of need. Plaintiffs have already obtained a number of Defendants’ polices, reports regarding prior allegations of racial discrimination at Sesame Place, and have deposed number of Defendants’ employees. Plaintiffs have failed to demonstrate any need to obtain the subpoenaed information from Mr. Adegbile, instead of from Defendants.

*5 Furthermore, many of the documents sought by Plaintiffs are evidence of subsequent remedial measures that would be inadmissible at trial pursuant to Federal Rule of Evidence 407. While Plaintiffs are correct to note that Rule 407 “goes to the admissibility of evidence at trial and not the discoverability of such evidence”, the fact that the information sought by Plaintiffs subpoena is likely to be inadmissible suggests that Plaintiffs’ need is marginal at best.

V. RECOMMENDATION

For the reasons set forth above, the Special Master recommends that the Court quash Plaintiffs’ Subpoena to Mr. Adegbile.