II. FACTS AND PROCEDURAL HISTORY

On December 10, 2021, Plaintiffs Jason McManus Holtzman, Jackie McManus Holtzman, and Madalena McManus Holtzman, as Trustees of the Elizabeth McManus Holtzman Irrevocable Trust (collectively, “the Trust”) instituted an action in the Philadelphia Court of Common Pleas to recover a 1926 painting by Dutch artist Piet Mondrian known as Schilderij No. 1, 60 x 60 cm (“the Painting”) from Defendant Philadelphia Museum of Art (“PMA”) and asserting claims under Pennsylvania law for replevin, conversion, and unjust enrichment. The Trust alleged its action was timely pursuant to the Holocaust Expropriated Art Recovery Act (“HEAR Act”) of 2016, Pub. L. No. 114-308, 130 Stat. 1524. Pursuant to 28 U.S.C. § 1441(a), PMA removed this case to the Eastern District of Pennsylvania on January 11, 2022, on the basis that Plaintiffs' reference to the HEAR Act raised a federal question. (ECF 1). On August 10, 2022, the Trust filed an Amended Complaint. (ECF 39).

The discovery motions at issue largely arise out of the Parties' disputes regarding various claims of attorney-client privilege and work product protection. On January 22, 2024, the Court appointed me Special Discovery Master, pursuant to Fed. R. Civ. P. 53(a)(1)(C). (ECF 114). On March 20, 2024, I heard oral argument on the instant motions.

III. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE

A. Attorney-Client Privilege

Pennsylvania has codified the attorney-client privilege as follows: “In a civil matter, counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” 42 Pa. C.S.A. § 5928.[1] The attorney-client privilege serves to allow “counsel to provide legal advice based upon the most complete information from the client.” Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1027 (Pa. Super. 2015).[2] To invoke the attorney-client privilege, the asserting party must establish that:

Newsuan v. Republic Servs. Inc., 213 A.3d 279, 284-85 (Pa. Super. 2019). The attorney-client privilege protects communications from both lawyers to their clients and clients to their lawyers. Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011).

“[T]he party claiming that the privilege exists bears the burden of proving that it applies to the communications at issue.” SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 473 (E.D. Pa. 2005). Because the attorney-client privilege obstructs the truth-finding process, it should be narrowly construed and “applied only where necessary to achieve its purpose.” Wachtel v. Health Net, Inc., 482 F.3d 225, 231 (3rd Cir. 2007).

B. Work Product Doctrine

While the attorney-client privilege “promotes the attorney client relationship, and indirectly, the functioning of our legal system by protecting the confidentiality of communications between clients and their attorneys,” the work product doctrine “promotes the adversary system directly by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation.” Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991).

“The work product doctrine is governed by a uniform federal standard set forth in Fed. R. Civ. P. 26(b)(3) and ‘shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” In re Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003) (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)). The work product doctrine “extends to both tangible and intangible work product.” Id. at 662. Furthermore, the doctrine's protections extend “beyond materials prepared by an attorney to include materials prepared by an attorney's agents and consultants.” Id. “[T]he work product doctrine is not an absolute bar to discovery of materials prepared in anticipation of litigation.” Id. at 663. “Work product can be produced ‘upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ ” Id. (quoting Fed. R. Civ. P. 26(b)(3)).

*3 However, “even if the party seeking discovery of information otherwise protected by the work product doctrine has made the requisite showing of need and undue hardship, courts must still protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney and his agents.” Id. “Stated differently, Rule 26(b)(3) establishes two tiers of protection: first, work prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship; second, ‘core’ or ‘opinion’ work product that encompasses the ‘mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation’ is ‘generally afforded near absolute protection from discovery.’ ” Id. (quoting In re Ford Motor Co., 110 F.3d 954, 962 n. 7 (3d Cir. 1997). “Thus, core or opinion work product receives greater protection than ordinary work product and is discoverable only upon a showing of rare and exceptional circumstances.” Id.

As the work product doctrine serve to protect an attorney's work product from falling into the hands of an adversary, disclosure to a third party does not waive the doctrine's protection unless it enables an adversary to gain access to the information. Westinghouse Elec. Corp., 951 F.2d at 1428 (3d Cir. 1991).

IV. ANALYSIS

A. Plaintiffs' Motion to Compel Further Testimony of Catherine Herbert and Cynthia Albertson

Catherine Herbert is a provenance researcher for PMA. Ms. Herbert researched the Painting's provenance in the early 2000s and, in 2002, published a report summarizing her conclusions on PMA's website. Cynthia Albertson is PMA's conservator who inspected the Painting before and after PMA received notice of the Trust's claim. At their depositions, PMA's counsel instructed them not to answer various questions, claiming attorney-client privilege and work product protection.[3] The Trust subsequently moved to compel further testimony.

On April 14, 2018, PMA received a claim letter from Gunnar Schnabel, the Trust's German attorney, asserting that the Trust owned the Painting. Ms. Herbert sought advice from PMA's counsel, who instructed her to conduct additional research. As part of her research, and in consultation with PMA's counsel, Ms. Herbert e-mailed the Rhode Island School of Design (“RISD”) to obtain additional information.[4] At her deposition, PMA permitted Ms. Herbert to testify regarding her 2002 provenance report and related research but objected to the Trust's questions regarding her post-notice analysis performed at the direction of counsel and the substance of her communications with RISD.

PMA claims that it has already produced the documents that Ms. Herbert obtained after April 2018 and argues that the Trust's deposition questions seek protected opinion work product—specifically, “what Herbert, working at the direction of counsel, considers significant to the defense of this case.” (ECF 79 at 9). The Trust cites to D'Alonzo v. Hunt to argue that a party's investigator may be deposed regarding “the underlying facts” of the litigation. 2006 WL 3511712 (E.D. Pa. 2006). In D'Alonzo, the Court permitted the deposition of an independent adjuster who conducted an on-scene inspection of an automobile accident on behalf of the defendants. Id. at *3. The Court explained that “[w]hile the work product privilege is applicable to deposition questions seeking to elicit information beyond the underlying facts, it cannot be used to bar questions about [the deponent's] knowledge of the facts [the] litigation.” Id.

Upon review of Ms. Herbert's deposition transcript, it is apparent that the Trust seeks information beyond Ms. Herbert's knowledge of the “underlying facts” of this case. See, e.g., ECF 72-4 at 45:17-20 (“[h]ave you told me every historical fact that supports your position that Mr. Gallatin was the owner of the painting”); 60:16–21 (“do you believe it would have been reasonable for Mr. Mondrian to believe that his friend Mr. Gallatin was displaying his painting that he still had ownership of and that had had never relinquished ownership of the painting?”). These questions go to Ms. Herbert's present subjective evaluation of key issues and evidence. Any response is likely to implicate the litigation judgments of PMA's counsel, with whom Ms. Herbert worked closely. Moreover, Ms. Herbert is not testifying as an expert. As such, her present opinions regarding the ownership of the Painting have little, if any, relevance to the issues in this case.

*4 Likewise, Ms. Herbert testified that she consulted with PMA's General Counsel prior to requesting additional information from RISD and that she believes the General Counsel was copied on her e-mail. (ECF 72-4 at 87:11–20). Given counsel's intimate involvement in Ms. Herbert's communications with RISD, Ms. Herbert's testimony on their substance would likely reveal the mental impressions of counsel. This is precisely the information the work product doctrine was created to protect. See Sporck v. Peil, 759 F.2d 312, 316 (3d 1985) (“[p]reserving the privacy of information that is essential to the attorney's adversary role is the central justification for the work product doctrine”). Accordingly, I recommend that the Court deny the Trust's motion to re-depose Ms. Herbert.

In 2019, Ms. Albertson, in the presence of and at the direction of PMA's counsel, examined the Painting in response to Mr. Schnabel's claim letter. Ms. Albertson had also inspected the Painting prior to the claim letter, as part of her regular duties as PMA's conservator. At Ms. Albertson's deposition, PMA permitted her to testify regarding her pre-litigation inspections but objected to questions regarding her 2019 inspection.[5]

In contrast with Ms. Herbert's deposition, the questions posed to Ms. Albertson do concern underlying facts—namely, the physical state of the Painting. See, e.g., ECF 72-5 at 38:1-2 (“[w]hat did you observe when you used the UV light?”); 40:9–10 (“did you see any variation on the painting other than at the perimeter?”). Such information does not necessarily implicate the mental impressions or thought processes of counsel. Even if Ms. Albertson observed something in her 2019 inspection that she had previously missed, it would not necessarily follow that she must have been instructed by PMA's counsel to look for that feature. She may have simply overlooked something in her prior inspections, or the Painting may have been altered in the intervening years. PMA argues that the Trust already has sufficient information regarding the physical state of the Painting in the form of high-resolution photographs produced in discovery. However, photographs, no matter how detailed, may not capture all the features observable during close, in-person inspection.

Accordingly, I recommend that the Court permit the Trust to re-depose Ms. Herbert. I also recommend that the Court limit the Trust's questioning to Ms. Albertson's knowledge of the underlying facts, and not her opinions regarding the significance or meaning of her observations or why she employed particular techniques.

B. Plaintiffs' Motion to Compel Testimony of Rule 30(b)(6) Witness

On March 16, 2023, the Trust noticed a Rule 30(b)(6) deposition of PMA, which included the following topic:

PMA informed the Trust that it would not permit its Rule 30(b)(6) designee to answer any questions “as to who PMA understood to be the ‘owner,’ as opposed to the possessor of [the Painting] at any point in time,” claiming that any such questions would require disclosure of attorney work product. After a meet and confer, PMA indicated it would allow its Rule 30(b)(6) representative to answer questions such as “(1) in 2001, who did the PMA think owned [the Painting] and (2) at the time the PMA acquired [the Painting], was an ownership determination made.” (ECF 80 at 4).

The Parties' papers suggest that they may have reached an agreement. PMA claims that it is prepared allow its designee to testify “about its pre-litigation research into the provenance of [the Painting],” including who it thought owned the Painting prior to this litigation. (ECF 92 at 9). For its part, the Trust maintains that it will not seek PMA's internal litigation analysis and will limit its questioning to any “further provenance research outside of litigation before or since [ ] Herbert's work in the early 2000s (and excluding any litigation assistance Ms. Herbert gave to Defendant's counsel).” (ECF 95 at 2). Taking their positions together, the Parties appear to agree that the 30(b)(6) representative's testimony should be limited to PMA's pre-2018 provenance research and conclusions and should exclude any discussion of PMA's post-notice analysis. This would be consistent with case law in this District supporting such a limitation. See SmithKline Beecham Corp. v. Apotex Corp., 2004 WL 739959 (E.D. Pa. Mar. 23, 2004) (denying motion to compel responses to 30(b)(6) deposition questions seeking legal contentions and finding that contention interrogatories were a more appropriate means of discovering this information). I recommend that the Court issue an order to this effect.

C. Defendant's Motion to Compel Production of Hilary C. Richardson Documents

*5 Hilary Richardson served as the Trust's agent for the management of the Mondrian copyright from 2004 to 2014. In response to PMA's Requests for Production, the Trust produced a number of documents involving Ms. Richardson, along with a privilege log identifying 12 documents withheld as relating to research and/or “mental impressions concerning Mondrian works.”

PMA then served Ms. Richardson with a subpoena duces tecum seeking documents relating to the Painting. At the Trust's direction, Ms. Richardson withheld 24 documents on attorney-client privilege and work product grounds. Among the documents Ms. Richardson did produce, is a 2020 email to one of her colleagues (and fellow non-party). (ECF 86 at 4). In the email, Ms. Richardson states that, in 2006 to 2007 and “on [her] own initiative,” she prepared a “huge binder” of information on Mondrian's work and presented it to the Trust.

PMA postponed Richardson's deposition after reviewing the email and moved to compel the withheld documents involving Ms. Richardson (“the Richardson Documents”). PMA argues that the Richardson Documents cannot be protected work product because the documents (1) were not prepared at the direction of an attorney; (2) were not prepared in anticipation of litigation; and (3) fell outside the scope of Ms. Richardson's duties as the Trust's Copyright Manager. (ECF 86 at 6-9). The Trust argues that Ms. Richardson conducted her research at the direction of the Trust's attorneys and within the scope of her duties and in anticipation of litigation because it concerned “possible claims by the Trust for lost artworks.” (ECF 95 at 5). I have reviewed the Richardson Documents in camera.

As an initial matter, despite Ms. Richardson's 2020 email, Ms. Richardson's research appears to have been performed at the direction of the Trust's attorneys. Likewise, the documents reviewed indicate that Ms. Richardson regularly updated the Trust's attorneys on her research, suggesting this work was within the scope of her duties. Accordingly, my analysis will focus on whether the Richardson Documents were prepared in anticipation of litigation.

“[W]hether a document was created in anticipation of litigation is often a difficult factual matter.” United States v. Rockwell Int'l, 897 F.2d 1255, 1266 (3d Cir. 1990). The test is whether “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Id. (quoting In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979)). “The primary motivating purpose behind the creation of the document [must be] to aid in possible future litigation.” Rockwell Int'l, 897 F.2d at 1266. To answer this question, “[c]ourts in the Third Circuit have applied a two-part inquiry: (1) determining at what point in time litigation could reasonably have been anticipated and (2) ensuring that the material in question was produced because of the prospect of litigation and for no other purpose.” SmithKline Beecham Corp., 232 F.R.D. at 483.

“The first prong of this test requires a showing of an identifiable specific claim of impending litigation and is not satisfied by the mere involvement of, consultation with, or investigation by an attorney.” Id. at 484. “The party must establish more than a likely chance, remote prospect, or inchoate possibility of litigation.” Id. The anticipation of litigation must be “objectively reasonable,” which generally “requires proof of an identifiable specific claim or impending litigation when the materials were prepared.” Faloney v. Wachovia Bank, N.A., 254 F.R.D. 204, 214 (E.D. Pa. 2008). However, “advising a client about matters which may or even likely will ultimately come to litigation does not satisfy the in ‘anticipation of [litigation]’ standard.” Cedrone v. Unity Sav. Ass'n, 103 F.R.D. 423, 426 (E.D. Pa. 1984).

*6 With regard to the second prong, documents “routinely prepared in the ordinary course of business will not be protected.” SmithKline Beecham Corp., 232 F.R.D. at 484. Furthermore, “the articulable claim likely to lead to litigation must pertain to this particular party, not to the world in general.” Id.

Document No. 51 of the Trust's July 14, 2023 privilege log consists of a March 29, 2011 legal memorandum by an outside attorney and related communications concerning potential claims against the holder of separate Mondrian works. The form and content of Document No. 51 firmly establish it as having been prepared in anticipation of litigation. There are references to “potential claims” against the holder and the memorandum contains detailed legal analysis suggesting that the Trust seriously contemplated making a demand on a specific, identified party for specific, identified works. Accordingly, Document No. 51 is protected work product. While Document No. 51 does not concern the Painting, the work-product doctrine also protects materials created in anticipation of separate litigation. See In re Grand Jury (OO-2H), 211 F. Supp. 2d 555, 460 (M.D. Pa. 2001) (noting that work product protection is not “confined to materials specifically prepared for the litigation in which they are sought”).

There is no indication that the remaining Richardson Documents were prepared in anticipation of litigation. These documents reflect what appears to be a general inquiry by the Trust and its attorneys/agents into the provenance of a number of Mondrian works, including, on occasion, the Painting. Even if Ms. Richardson's research was likely to ultimately result in litigation, there is nothing in the documents to suggest an identifiable specific claim for any particular painting or against any particular party.

Furthermore, without disclosing the substance of the document, Document No. 51 contains a statement by a Trust attorney which suggests that, as of September 2010, the Trust had no immediate plans to pursue litigation over the Painting or against PMA. As essentially all of the remaining Richardson Documents were prepared prior to 2010, this statement undermines the Trust's claims that the documents were prepared in anticipation of litigation.

Even if the Richardson Documents had been created in anticipation of litigation, the work product doctrine would not shield them from discovery because PMA has demonstrated a substantial need for the documents. PMA raised a laches defense in its Motion to Dismiss. (ECF 43). The Court denied PMA's Motion but held that a factual record needed to be developed to determine whether PMA could properly invoke the doctrine of laches. (ECF 52 at 3). The Richardson documents are key evidence of what the Trust knew, or should have known, regarding the provenance of the painting, and when it could have, or should have known it. Withholding this information from PMA risks prejudicing its laches defense.

The Trust's argument that PMA could obtain this information by taking Ms. Richardson's deposition is unconvincing. PMA would be placed in the unenviable position of questioning Ms. Richardson about events that took place almost 15 years ago, without the benefit of contemporaneous documentation to refresh her recollection and/or test the accuracy of her testimony. See Raso v. CMC Equip. Rental, Inc., 154 F.R.D. 126, 129 (E.D. Pa. 1994) (finding substantial need for work product containing witness's contemporaneous statements). Apart from Document No. 51, the Richardson Documents do not contain the mental impressions of counsel and are thus not entitled to the heightened protection afforded to opinion work product.

*7 For these reasons, I recommend that the Court order Ms. Richardson and the Trust to produce all withheld Richardson Documents, apart from Document No. 51.

D. Defendant's Motion to Compel Production of Dr. Monika Tatzkow and Gunnar Schnabel Documents

In February 2016, Dr. Monika Tatzkow, a German provenance researcher, contacted the Trust to inform it that she and her colleague, Gunnar Schnabel, a German lawyer, had identified previously unpublished documents regarding certain Mondrian works, including the Painting. (ECF 85 at 2). On April 26, 2016, Dr. Tatzkow and Mr. Schnabel met with the Trust in Connecticut to discuss their research. Id. On August 1, 2017, the Trust executed a written retainer agreement with Dr. Tatzkow and Mr. Schnabel (the Retainer Agreement). (ECF 85, Ex. F). Under the Retainer Agreement, Dr. Tatzkow and Mr. Schnabel committed to investigate the provenance of Mondrian works and “claim the art work[sic] at the present possessor.” Id. at § 2. In exchange, Dr. Tatzkow and Mr. Schnabel would each receive 15% of the “current market value of each restituted property item” or “the respective indemnity or monetary compensation paid instead of restitution.” Id. at § 3.

The Trust has withheld its communications with Dr. Tatzkow and Mr. Schnabel on attorney-client privilege and work product grounds. The Parties' disagreements center around whether the Trust's relationship with Dr. Tatzkow and Mr. Schnabel was sufficient to afford the withheld documents the protections of the attorney-client privilege and/or work product doctrine. The substance of the withheld documents has not been implicated. Accordingly, I have not found it necessary to review the withheld documents in camera.

Dr. Tatzkow is not an attorney. At oral argument, the Trust likened Dr. Tatzkow's role to that of “an experienced paralegal” who could collect necessary information from a client without specific direction from a supervising attorney. Oral Argument Tr. 138:15-139:17. The Trust is correct that client communications with a paralegal working under the supervision of an attorney would likely be privileged. The law specifically provides for these circumstances by privileging communications made to or by “a member of the bar of a court or his subordinate.” Newsuan, 213 A.3d at 285 (emphasis added); see also SodexoMAGIC, LLC v. Drexel University, 291 F. Supp. 3d 681, 684 (E.D. Pa. 2018) (“Communications with the subordinate of an attorney, such as a paralegal, are also protected by the attorney-client privilege so long as the subordinate is acting as the agent of a duly qualified attorney under circumstances that would otherwise be sufficient to invoke the privilege.”). However, the Trust has not claimed that Dr. Tatzkow was Mr. Schnabel's subordinate and the evidence available suggests that she was not. The Retainer Agreement provides for equal compensation for Dr. Tatzkow and Mr. Schnabel and does not suggest that Mr. Schnabel would supervise or control Dr. Tatzkow's work. Furthermore, Dr. Tatzkow has worked independently of Mr. Schnabel in the past. (ECF 85, Ex. G). As Dr. Tatzkow is neither an attorney nor the subordinate of an attorney, the attorney-client privilege does not apply to her communications with the Trust.[6]

*8 PMA argues that none of Mr. Schnabel's communications with the Trust are privileged because the Retainer Agreement “ ‘limits’ Mr. Schnabel's ‘legal representation’ to ‘legal action in Europe,’ ” and that the Trust would retain a domestic lawyer for claims in the United States. (ECF 85 at 10). While the language of the Retainer Agreement does contemplate the fact that Mr. Schnabel, being unlicensed in the United States, would be unable to represent the Trust in litigation here, it does not follow that Mr. Schabel could not render legal advice regarding the Painting.[7] There is no dispute that Mr. Schnabel is licensed to practice law in Germany and that any action to recover the Painting—or any other Mondrian work confiscated by Nazi Germany—would implicate issues of German law. Indeed, PMA has given notice under Fed. R. Civ. P. 44.1 that it intends to raise and rely on issues of German law in this action. (ECF 61). Moreover, the Restatement (Third) of the Law Governing Lawyers provides that “a lawyer admitted to practice in a foreign nation is a lawyer for the purpose of the privilege.” Comment (e).

While Mr. Schnabel may not have been hired as the Trust's attorney prior to August 1, 2017, a lawyer need not actually have been hired for the privilege to apply. Constand v. Cosby, 232 F.R.D. 494, 502 (E.D. Pa. 2006) (“It is not necessary that an attorney-client relation have actually existed. One who consults a lawyer with a view to obtaining professional legal services from him or her is regarded as a client for purposes of the privilege.”). Accordingly, the attorney-client privilege applies to the Trust's communications with Mr. Schnabel, both before and after the August 1, 2017 Retainer Agreement.[8]

A number of the withheld documents are emails between Trust and Mr. Schnabel to which Dr. Tatzkow is a separate recipient or is copied on. PMA argues that, as a third-party, Dr. Tatzkow's presence on these documents waives any claim of privilege. (ECF 85 at 7).

However, the “presence of a third-party, such as a consultant does not destroy the attorney-client privilege where that party is the client's agent or possesses ‘a commonality of interest with the client.” SmithKline Beecham Corp., 232 F.R.D. at 477 (holding that client did not waive the attorney-client privilege merely by revealing confidential communications to its own consultant); see also Quagliarello v. Dewees, 802 F. Supp. 2d 620, 632 (E.D. Pa. 2011) (holding that the presence of adult client's parents during meeting with attorney did not waive the attorney-client privilege). The August 1, 2017 Retainer Agreement established that Dr. Tatzkow would research the Painting's provenance on the Trust's behalf in exchange for a contingency fee in the event of a successful restitution. This arrangement demonstrates the sort of agency relationship and/or “commonality of interest” between the Trust and Dr. Tatzkow sufficient to preserve the attorney-client privilege of the post-Retainer Agreement communications on which she was included. Prior to the Retainer Agreement, however, there is no evidence for such a relationship. As such, I find that Dr. Tatzkow's inclusion on any communications pre-dating August 1, 2017 waives the Trust's claims of privilege.

Rule 26(b)(3), by its plain language, only protects material “prepared in anticipation of litigation or for trial by or for another party or its representative.” The Trust does not claim that Mr. Schnabel and/or Dr. Tatzkow represented the Trust prior to August 1, 2017. (See ECF 100 at 2) (“Between April 2016 and August 2017, Mr. Schnabel understood that the Trust was interested in obtaining his legal advice with the assistance of Dr. Tatzkow, and Plaintiffs continued to discuss legal representation with him and Dr. Tatzkow.”) (emphasis added). Nor is there is any evidence of an agency relationship between Dr. Tatzkow and the Trust prior to the August 1, 2017 Retainer Agreement. The very existence of the Retainer Agreement suggests that no there was no such relationship previously, and the Agreement contains no language to suggest that it was merely formalizing a preexisting arrangement. The Trust offers no authority affording work product protection to documents created prior to the existence of an attorney-client and/or agency relationship. Because evidentiary privileges are highly disfavored, the work product doctrine must be strictly construed. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1429 (3d Cir. 1991). As such, the work product doctrine does not shield the Trust's pre-Retainer Agreement communications with Dr. Tatzkow and Mr. Schnabel from discovery.

*9 PMA argues that work product protection does not apply to Dr. Tatzkow's post-Retainer Agreement research because she was not acting as Mr. Schnabel's agent.[9] (ECF 85 at 9–10). However, Rule 26(b)(3) “does not explicitly require the participation of an attorney in the creation of the materials.” Moore v. Plains All Am. GP, LLC, 2015 WL 5545306 at *4 (E.D. Pa. Sept. 18, 2015); Fed. R. Civ. P. 26(b)(3) (“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).” Accordingly, courts in this District have held that work product protection extends “to documents prepared in anticipation of litigation by a party or its representative,” regardless of whether an attorney was involved. Id.; see also Keating v. McCahill, 2012 WL 2527024, at *4 (E.D. Pa. July 2, 2012) (“materials themselves need not be prepared by a lawyer or a lawyer's representative to qualify for work product protection”). The Retainer Agreement provides that Dr. Tatzkow would conduct provenance research on the Trust's behalf for the purpose of eventually making a claim. (ECF Ex. F, at § 2. As Dr. Tatzkow's post-Retainer agreement research was performed at the Trust's behest and in anticipation of litigation, it constitutes protected work product.[10]

For these reasons, I recommend that the Court grant PMA's Motion to Compel in part and order the Trust to produce all withheld documents pre-dating August 1, 2017, apart from those withheld as attorney-client privileged and reflecting communications solely between the Trust and Mr. Schnabel (Document No. 1 of the Trust's July 14, 2023 privilege log and Document Nos. 9, 23, and 25 of the Trust's December 29, 2023 privilege log). All documents created on, or after, August 1, 2017 are protected by the attorney-client privilege and/or work product doctrine.

E. Defendant's Motion to Compel Further Testimony of Dr. Monika Tatzkow

On September 14, 2023, PMA deposed Dr. Tatzkow through a translator. During her deposition, Dr. Tatzkow refused to answer—sometimes at the direction of the Trust's counsel and other times on her own initiative—questions regarding her retention and involvement, her research relating regarding potential claims to Mondrian artwork, and her work with other clients. Additionally, three months after the deposition, the Trust's counsel submitted a lengthy errata sheet that substantively modified many of Dr. Tatzkow's responses.

The Trust concedes that Dr. Tatzkow should be re-deposed, but argues that a 3.5-hour, remote deposition is sufficient. (ECF 97 at 2). PMA seeks a 7-hour, in-person deposition. (ECF 87). Given Dr. Tatzkow's reliance on a translator and the difficulties which arose at her first deposition, I recommend a 7-hour in-person deposition. In the interest of efficiency, I will preside over the deposition to resolve any objections.

V. RECOMMENDATION

For the reasons set forth above, I recommend that the Court enter the attached proposed order.

Respectfully submitted,

SAXTON & STUMP, LLC

Hon. Lawrence F. Stengel (Ret.) Court Appointed Special Master