HAWA et al v. COATESVILLE AREA SCHOOL DISTRICT

Filing 101

MEMORANDUM OPINION. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 9/12/2016. 9/12/2016 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ABDALLAH HAWA and
TERESA POWELL,
Plaintiffs,

v.
COATESVILLE AREA SCHOOL DISTRICT,
et al.,
Defendants.

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CIVIL ACTION

No. 15-4828

MEMORANDUM OPINION
This matter has come before the Court on Defendant Coatesville Area School District’s
(“CASD”) Motion to Quash Subpoenas Served Upon Mathew Haverstick, Esquire and Conrad
O’Brien P.C. (Doc. No. 67). For the reasons discussed below, the Motion will be granted.
I.

BACKGROUND
This action involves claims brought by CASD employees, Plaintiffs Abdallah Hawa and

Teresa Powell (collectively, the “Plaintiffs”), against CASD and its former Superintendent,
Angelo Romaniello (“Romaniello”), arising from their discovery of racist text messages
regarding them exchanged between CASD administrators and from the actions the Defendants
allegedly took against them in retaliation for their public disclosure of the text messages. 1 After
the controversy regarding the text messages had erupted publicly, CASD hired attorney,
Matthew Haverstick, Esquire (“Haverstick”), and his law firm, Conrad O’Brien P.C. (“Conrad”)
1

The factual allegations pertaining to this case are set forth in this Court’s March 3, 2016
Memorandum Opinion (Doc. No. 45) and its May 4, 2016 Memorandum Opinion (Doc. No. 64)
and thus, will not be repeated here.

(collectively, the “Attorneys”), to investigate a number of matters relating to various alleged
misconduct of a previous CASD Superintendent, Richard Como, including irregularities in hiring
practices, preference afforded to members of CASD’s School Board, financial mismanagement,
and misappropriation of funds as well as alleged overbilling and misappropriation of CASD
technology by its former counsel. See Investigative Report to the Board of School Directors for
the Coatesville Area School District (Doc. No. 67-4, at 21-177). 2 Also included in the
investigation was the Plaintiffs’ discovery of the racist text messages and the alleged attempts by
Romaniello and CASD’s former counsel to suppress public disclosure of the text messages,
which included discussion of Romaniello’s and former counsel’s interactions with the Plaintiffs
regarding the disclosure of the text messages. Id. at 9-10. In an effort to be transparent
regarding various allegations of misconduct by CASD, CASD released the Report to the public.
Id. at 1-3.
The current dispute arises because Plaintiffs have issued subpoenas to CASD’s Attorneys
seeking production of:
All documents relating or pertaining to Abdallah Hawa or Teresa Powell; [2] all
communications with the Coatesville Area School District or any other person or
entity regarding the Investigative Report To The Board of School Directors For
The Coatesville Area School District that was released to the public on February
9, 2015; [3] any and all documents supplied by Coatesville Area School District
or any other person or entity that were either reviewed or considered in
conjunction with preparing the Investigative Report To The Board of School
Directors For The Coatesville Area School District that was released to the public
on February 9, 2015; [4] any notes, memoranda, or documents pertaining to any
investigation conducted into the activities of Richard Como, James Donato,
and/or any other employee of the Coatesville Area School District.

2

CASD’s counsel also issued a supplemental report. Doc. No. 67-8. The two reports will be
referred to collectively herein as the “Report.”

2

Doc. No. 67-2, at 2 (Haverstick subpoena); Doc. No. 67-3, at 2 (Conrad subpoena). 3
CASD moves to quash the subpoenas, asserting, inter alia, that they seek privileged
information. CASD Mot. at 9-11. Plaintiffs argue that CASD has waived any claim of privilege
over the responsive documents by publishing the Report. Pl.’s Opp. at 4-5. In response, CASD
contends that its publication of the Report did not act as a waiver with respect to any attorneyclient privileged information related to the Report that was not disclosed. CASD Reply (Doc.
No. 96) at 4-8.
II.

DISCUSSION
There is no question that the work of “an attorney who investigates complaints and

conducts interviews within a company or an organization retains the same entitlement to the
attorney-client privilege as if he or she were offering pure legal advice.” Ziner v. Cedar Crest
Coll., No. 04-3491, 2006 WL 8409873, at *3 (E.D. Pa. May 30, 2006) (citing Upjohn Co. v.
United States, 449 U.S. 383, 390 (1981)). Here, Plaintiffs argue that by releasing the Report
CASD’s attorneys had produced as the result of their investigation, CASD has waived its
attorney-client privilege as to all documents that were consulted in the preparation of the Report
as well as all related communications.

3

Plaintiffs’ counsel has advised that in subsequent negotiations, Plaintiffs limited their
request as follows:
(1) Any witness statements, communications, or documents which relate or pertain
to: the employment of Hawa and/or Powell with CASD, their whistleblowing
activities, or any legal action they have taken against CASD; (2) Any witness
statements, communications, or documents that were utilized or considered in
preparing Section III(I) and Section V(A), (C) of the Investigative Report, including
any exhibits referenced therein. Additionally, Plaintiffs expressly excluded Mr.
Haverstick’s attorney-work product from these requests.
Pl.’s Opp. (Doc. No. 95) at 3.

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It is true, as CASD contends, that a party generally waives the privilege if it voluntarily
discloses a privileged communication to a third party. Westinghouse Elec. Corp. v. Republic of
the Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991). However, it also is well-recognized that a
party may make a partial waiver of the attorney-client privilege with respect to attorney-client
communications actually disclosed without waiving its attorney-client privilege in its entirety
unless a partial waiver would be unfair to a party’s adversary. Id. at 1426 n.12; In re Intel Corp.
Microprocessor Antitrust Litig., 258 F.R.D. 280, 289 (D. Del. 2008); Wachtel v. Guardian Life
Ins. Co., No. 01-4183, 2006 WL 1286188, at *1 (D.N.J. May 8, 2006); In re Linerboard Antitrust
Litig., 237 F.R.D. 373, 388 (E.D. Pa. 2006). The “central element” in determining whether a
partial waiver exists is the question of fairness. Net2Phone, Inc. v. Ebay, Inc., No. CIV. A. 062469 KSH, 2008 WL 8183817, at *10 (D.N.J. June 26, 2008) (citing Harding v. Dana Transport,
Inc., 914 F. Supp. 1084, 1090 (D.N.J. 1996)). “The fairness component seeks to ‘prevent
prejudice to a party and distortion of the judicial process that may be caused by the privilege
holder's selective disclosures . . . of otherwise privileged information.’” Id. (quoting In re Intel
Corp., 258 F.R.D. at 290). Fairness prohibits a partial waiver “when a party attempts to use the
communication in a litigation or where the party ‘makes factual assertions, the truth of which can
only be assessed by examination of the privileged communications.’” Id. (quoting In re Intel
Corp., 258 F.R.D. at 290).
The doctrine of partial waiver is applicable in cases where attorneys conduct
investigations on behalf of a client and the client then releases the attorney’s report without
releasing underlying documents and communications. See, e.g., Sullivan v. Warminster Twp.,
274 F.R.D. 147, 153-54 (E.D. Pa. 2011); Ziner, 2006 WL 8409873, at *3-4; In re Linerboard,
237 F.R.D. at 387-89 (collecting cases). “Courts generally hold that disclosures that occur

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outside the context of a judicial proceeding do not implicitly waive the privilege as to all
communications on the same subject matter” where the disclosed material is not used by the
client to gain an adversarial advantage in a judicial proceeding. Sullivan, 274 F.R.D. at 154
(citing In re von Bulow, 828 F.2d 94, 103 (2d Cir. 1987); In re Keeper of Records, 348 F.3d 16,
24 (1st Cir. 2003)).
In the present case, the Attorneys prepared the Report as part of a wide-ranging
investigation of an array of improper and potentially unlawful activities allegedly carried out by
CASD’s former leadership that had become the subject of a publicly-reported investigative grand
jury report. CASD Mot. Ex. 3, at 1. CASD, as a public entity, released the Report to provide
transparency to its constituents as to a matter of significant public interest. Plaintiffs have not
argued that CASD has made any strategic use of the Report in this litigation, that it relies on the
Attorneys’ investigation as a form of defense in this action or that it has “‘made factual
assertions, the truth of which can only be assessed by examination of the privileged
communications.’” Net2Phone, 2008 WL 8183817, at *10 (quoting In re Intel Corp., 258 F.R.D.
at 290). They have not articulated any basis on which nondisclosure of the communications and
materials underlying the Report would impose any unfairness on them. 4 Nor have they argued,

4

Plaintiffs rely upon Harding v. Dana Transp., Inc., in which the court ruled that an employer
had waived the attorney-client privilege as to documents and communications underlying its
counsel’s internal investigation of allegations of sexual harassment. 914 F. Supp. 1084, 1094-96
(D.N.J. 1996). That case, however, provided a prototypical example of the circumstances in
which permitting a partial privilege waiver would be unfair. In Harding, the employer sought to
use its claim that it had conducted an adequate investigation into the allegations of sexual
harassment as a substantive defense to its potential liability for a hostile workplace claim. Id. at
1096 (use of the fact of the investigation as a defense to liability required a waiver of the
attorney-client privilege to permit plaintiff to evaluate the adequacy of the investigation); see id.
at 1093-94 (“[A]n employer may avoid liability if its procedures for investigating and
remediating alleged discrimination are sufficiently effective.”) (quoting Bouton v. BMW of
(Footnote continued on next page)
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or provided any basis for the Court to conclude that any of the non-privileged materials the
Attorneys collected in their investigation are not available to them through ordinary discovery
addressed to the materials’ original sources. Plaintiffs have merely alleged a blanket waiver of
the attorney-client privilege for all materials consulted or obtained in the preparation of the
Report and all communications relating to it. Pl.’s Opp. at 4-6. As the authority discussed above
demonstrates, Plaintiffs’ blanket-waiver argument is unavailing. Accordingly, the Motion to
Quash will be granted.
An appropriate Order follows.

Date: September 12, 2016
BY THE COURT:

/s/ Marilyn Heffley
MARILYN HEFFLEY
UNITED STATES MAGISTRATE JUDGE

North America, Inc., 29 F.3d 103, 106 (3d Cir. 1994)). The use of the disclosed information as a
substantive defense in Harding makes that case inapplicable to a case, such as this one, in which
the client has made no use of the investigation as a defense. See Zine, 2006WL 8408973, at *3
(distinguishing Harding on that basis).
Plaintiffs further rely on Freedman & Gersten, LLP v. Bank of America, in which the court
permitted discovery of documents underlying an internal Suspicious Activity Report prepared by
the defendant bank with respect to a dishonored check. No. 09-5351 (SRC) (MAS), 2010 WL
5139874, at *3 (D.N.J. Dec. 8, 2010). The court there did not order production of privileged
communications relating to the internal investigative report but only of “documents and facts
pertaining to the suspicious activity at issue in th[at] matter, which were created in the ordinary
course of business.” Id. To the extent the Attorneys utilized any documents that CASD created
in the ordinary course of business in their Report, Plaintiffs have not suggested any reason why
they cannot obtain such documents through discovery directed at CASD.

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