WRIGHT v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 8/21/2017. 8/23/2017 ENTERED AND COPIES E-MAILED.(sme, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA et al.,
AUGUST 21, 2017
Mr. Wright sued the City of Philadelphia and a number of its former police department
employees for constitutional violations arising out of his 1991 arrest, 1993 prosecution, and 25year imprisonment for a rape and murder he did not commit. In 2016 a jury acquitted
Mr. Wright of the rape and murder after a retrial that included DNA evidence not available at his
initial trial. 1 The dispute currently before the Court centers on whether Mr. Wright and his
attorneys have complied with their obligations under this case’s governing Confidentiality
Agreement to use reasonable efforts to retrieve documents Defendants designated as confidential
three months after the documents were produced to Mr. Wright. For the reasons that follow, the
Court will deny the Philadelphia District Attorney’s Office’s Motion to Enforce.
BACKGROUND AND PROCEDURAL HISTORY
Mr. Wright initiated this lawsuit on September 20, 2016 by filing a complaint asserting,
among other claims, a claim for municipal liability pursuant to Monell v. City of New York Dep’t
Because the Court writes primarily for the parties, a full recitation of the allegations
contained in Mr. Wright’s complaint is not provided here. A more thorough recounting of Mr.
Wright’s allegations is contained in the Court’s opinion denying the Defendants’ partial Motion
to Dismiss. See Wright v. City of Phila., 229 F. Supp. 3d 322 (E.D. Pa. 2017).
of Social Servs., 436 U.S. 658 (1978). In March 2017, the Court entered a Confidentiality
Agreement to which Mr. Wright, Defendants, and nonparty the Philadelphia District Attorney’s
Office (“DAO”) were signatories. The Confidentiality Agreement covered topics including
(i) the procedures for designating information as confidential, (ii) who the parties could disclose
confidential information to and under what circumstances, and (iii) the procedures for
designating information as confidential after a party inadvertently produced or disclosed
confidential information. The Confidentiality Agreement applied retroactively to all documents
produced on or after February 3, 2017.
Mr. Wright served a set of discovery requests on Defendants in December 2016, which
included a request for the production of Homicide Unit and Internal Affairs Division files (the
“Homicide Files”) covering eight homicide investigations. While the Homicide Files do not
relate to the investigation into Mr. Wright, they do cover investigations in which named
defendants in this case participated. Defendants, in consultation with the DAO, produced six of
the requested files in March 2017. Defendants did not mark the produced Homicide Files
After receiving the Homicide Files, Mr. Wright’s counsel shared a subset of the
Homicide Files with counsel for the Pennsylvania Innocence Project. The Innocence Project
represents certain of the criminal defendants—who are the subjects of the Homicide Files—in
connection with those criminal defendants’ pending or prospective post-conviction proceedings
in Pennsylvania state court. Mr. Wright’s counsel shared the Homicide Files with the Innocence
Project, who had a more complete understanding of its clients’ cases, to assess the relevance of
the Homicide Files to Mr. Wright’s Monell claim.
After reviewing the Homicide Files, the Innocence Project made a determination that the
files contain exculpatory evidence that had not previously been disclosed to its clients. The
Innocence Project then informed the DAO in June 2017 that it was in possession of exculpatory
evidence that had not previously been disclosed to its clients and requested that the DAO’s
Conviction Review Unit open an investigation into their clients’ cases. Two days later, defense
counsel in this litigation contacted Mr. Wright’s counsel and (i) designated the Homicide Files as
confidential pursuant to Paragraph 8 of the Confidentiality Agreement, which deals with
inadvertent disclosures, and (ii) requested that Mr. Wright’s counsel retrieve the Homicide Files
from any third parties to whom the files were disclosed.
Mr. Wright, Defendants, the DAO, and the Innocence Project met and conferred in good
faith to resolve the dispute over Defendants’ confidentiality designation and request that Mr.
Wright’s counsel retrieve all copies of the Homicide Files that had been disseminated. Unable to
resolve their dispute, Mr. Wright filed a Motion to Strike Defendants’ confidentiality
designation. The Court subsequently granted the Innocence Project’s Motion to Intervene for the
limited purpose of being heard on Plaintiff’s Motion to Strike and the DAO’s Motion to
Intervene for the limited purposes of (i) presenting argument concerning enforcement of the
Confidentiality Agreement, and (ii) being heard on Plaintiff’s Motion to Strike. The Innocence
Project then filed its own Motion to Strike Defendants’ confidentiality designation and the DAO
filed a Motion to Enforce the Confidentiality Agreement. 2
The DAO ultimately seeks to prevent what has already been done. Criminal defendants
represented by the Innocence Project obtained discovery concerning their respective criminal
Oral argument on Mr. Wright’s and the Innocence Project’s Motions to Strike is set for
October 2, 2017. The present opinion focuses solely on the DAO’s Motion to Enforce and does
not speak to the propriety of the Defendants’ confidentiality designation.
cases through the civil discovery process in this § 1983 action. The Innocence Project has since
used that discovery to file or amend Pennsylvania Post-Conviction Relief Act (“PCRA”)
petitions on behalf of its clients. The DAO decries how this alleged end run around the more
restrictive discovery rules governing PCRA petitions threatens to disrupt traditional notions of
federal-state comity and Congress’s intent that state court post-conviction petitioners exhaust
state remedies before resorting to federal court. Yet, the DAO does not—and cannot—deny
crucial facts underpinning the current dispute: (i) the Homicide Files were not designated as
confidential when produced by Defendants or shared with the Innocence project, and (ii) no law,
Court order, or statutory provision restricted Mr. Wright’s ability to share non-confidential
discovery with recipients of his choice and for his chosen reason. Accord Jepson, Inc. v. Makita
Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (“Absent a protective order, parties to a law
suit may disseminate materials obtained during discovery as they see fit.”). Accordingly, the
present dispute does not implicate notions of federal-state comity, 3 but is rather focused on one
simple question. Have Mr. Wright and his counsel fulfilled their obligations under the
Paragraph 8 of the Confidentiality Agreement states, in relevant part:
If a party or the DAO inadvertently produces or discloses confidential information,
including deposition testimony, without marking it “Confidential” or “Confidential –
Attorney Only,” the producing party or the DAO may subsequently designate the
document or information as “Confidential” or “Confidential – Attorney Only.” However,
until such time that a designation is made, the document or information shall not be
covered by this “Confidentiality Agreement.” Thereafter, such information shall be
treated as designated by the producing party or the DAO. When undesignated
documents are produced, and are later designated as “Confidential” or
“Confidential – Attorney Only,” and the party or parties to whom such
undesignated documents were produced shall use reasonable efforts to retrieve said
documents from any and all individuals to whom it has disclosed and/or produced
This opinion neither addresses nor opines on the discoverability and/or admissibility of
the Homicide Files pursuant to state law and state rules of procedure.
Confidentiality Agreement ¶ 8, Doc. No. 44 (emphasis added). By the plain language of the
Confidentiality Agreement, once Defendants designated the Homicide Files as confidential, Mr.
Wright and his counsel were obligated to “use reasonable efforts to retrieve” the Homicide Files
from the Innocence Project. 4 The DAO contends Mr. Wright and his counsel have not done so.
Mr. Wright’s counsel submitted a declaration to this Court under penalty of perjury
stating that, after Defendants’ retroactively designated the Homicide Files confidential, they
(i) contacted the Innocence Project to inform them of the asserted confidentiality and the DAO’s
request that the Homicide File be returned to Mr. Wright, and (ii) disabled the Internet link
through which they initially shared the Homicide Files.
The DAO appears to advance four arguments for why the Court should find that Mr.
Wright’s counsel have not demonstrated that they made reasonable efforts to retrieve the
Homicide Files from the Innocence Project: (i) Mr. Wright’s initial disclosure was unreasonable
because he handed over “sensitive files” to the Innocence Project knowing that they had no
control over what the Innocence Project might do with the files; (ii) Mr. Wright’s counsel did not
themselves ask the Innocence Project to return the Homicide Files, but rather passed along the
DAO’s request that the files be returned; (iii) Mr. Wright’s counsel did not sufficiently detail the
steps they took to retrieve the files; and (iv) Mr. Wright’s counsel has not offered to join a
hypothetical motion by the DAO to compel the Innocence Project to return the Homicide Files.
The Court addresses each argument in turn.
Mr. Wright disputes that he and his counsel were even under this obligation because
Defendants produced the Homicide Files purposefully, not inadvertently. Defendants and the
DAO argue that the Confidentiality Agreement contemplates an inadvertent failure to designate
documents as confidential as an event sufficient to trigger the procedures set forth in Paragraph
8. The Court is persuaded by Defendants’ and the DAO’s interpretation of the Confidentiality
Agreement. The plain language of the Confidentiality Agreement contemplates the inadvertent
failure to designate as confidential documents produced purposefully. Any other reading would
render Paragraph 8’s instructions describing how to retroactively designate documents as
First, it is of no relevance to this motion that the DAO considers the Homicide Files
“sensitive.” The parties and the DAO entered into a Confidentiality Agreement to protect
“sensitive files.” The Homicide Files, however, were not covered by the Confidentiality
Agreement until Defendants’ designation after Mr. Wright’s counsel had already disseminated
the files to the Innocence Project. Mr. Wright’s counsel did not breach the Confidentiality
Agreement when it provided the Homicide Files to the Innocence Project and it was under no
obligation at the time to give any thought as to what the recipient of non-confidential discovery
might do with it. See, e.g., United States v. Dougherty, No. 07-cr-361-1, 2014 WL 3676002, *3
(E.D. Pa. July 23, 2014) (refusing to order state court to seal a document because the order in the
federal case directing the document be kept under seal said “nothing about what [the parties,] let
alone anybody else, or a state court, could do with the document”).
Second, the DAO’s parsing of whether Mr. Wright’s counsel asked the Innocence Project
to return the files or merely passed along the DAO’s own request is a distinction without a
difference. Counsel for the Innocence Project made clear during Oral Argument that Mr.
Wright’s counsel informed them of a request to return the Homicide Files and that the Innocence
Project made its own determination to deny the request. The Court is unwilling to declare a
request worded “Please return the Homicide Files” a reasonable effort and a request worded
“The DAO has asked that you return the Homicide Files” an unreasonable effort.
Third, the Court finds that Mr. Wright’s counsel’s declaration is sufficient to demonstrate
reasonable efforts. Mr. Wright’s counsel made clear to the Innocence Project that there was an
outstanding request that the Innocence Project return the Homicide Files and deactivated the
Internet link where the files were initially posted. The DAO has not provided the Court with any
evidence to suggest that Mr. Wright’s counsel’s declaration provided false or misleading
The DAO further argues that even a direct request to a nonparty to return files does not
constitute “reasonable efforts” because that nonparty can always decline the request. The Court
is not convinced. That a nonparty can always decline a request is, the Court presumes, one of the
reasons clawback provisions such as Paragraph 8 ordinarily require only “reasonable efforts.”
That is to say there is virtually no amount of effort (at least within the boundaries of the law) that
a party can take to force a nonparty—under no legal or ethical obligations of its own—to return
documents it refuses to return. 5
Last, the Court does not agree that reasonable efforts under the circumstances require Mr.
Wright’s counsel to join a motion to compel directed at the Innocence Project. The Court
construes the DAO’s proposition to incorporate the argument it advanced during Oral Argument
that the Innocence Project is bound by the terms of the Confidentiality Agreement by virtue of
this Court’s Order granting the Innocence Project’s Motion to Intervene. See Confidentiality
Agreement ¶ 12(f) (“This Agreement shall be binding upon these parties and any other parties
subsequently added to this litigation.”). The DAO misinterprets the effect of the Court’s Order.
The Court “permitted [the Innocence Project] to intervene in this action for the sole purpose of
being heard on Plaintiff’s Motion to Strike.” July 19, 2017 Order ¶ 1, Doc. No. 75 (emphasis
added). A nonparty does not become a party to a litigation when it successfully intervenes for
the limited purpose of challenging a confidentiality agreement. See Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994) (acknowledging that “the procedural device of
This case presents a unique situation where the recipient of the retroactively designated
documents has its own interest in the documents. The more typical situation arises, for example,
when a party provides an uninterested nonparty with information subsequently designated
confidential. Under those situations, a request to return the documents is ordinarily sufficient
because the recipient has no material interest in keeping the documents.
permissive intervention is appropriately used to enable a litigant who was not an original party to
an action to challenge protective or confidentiality orders entered in that action” and explaining
that such intervenors do not “becom[e] parties to the litigation” (citing Beckman Indus., Inc. v.
Int’l Ins. Co., 966 F.2d 470, 473-74 (9th Cir. 1992)); see also Koprowski v. Wistar Inst. of
Anatomy & Biology, No. 92-1182, 1993 WL 332061, at *1 (E.D. Pa. Aug. 19, 1993) (“When a
non-party seeks permissive intervention for [a] limited purpose, no independent jurisdictional
basis is required as that party does not intend to litigate on the merits or seek to become a party
to the action.” (citing Beckman, 966 F.2d at 473)). Because the Innocence Project is not a party
to this litigation, and thus not bound by the provisions of the Confidentiality Agreement, it is not
clear to the Court how the DAO proposes to compel the Innocence Project to return the
Homicide Files. Certainly no party has presented the Court with a credible legal theory for how
a motion to compel could succeed. Accordingly, Mr. Wright’s counsel’s alleged failure to
volunteer to join such a motion does not factor into the Court’s decision.
Based on the parties’ and nonparties’ submissions to the Court, and the representations
made during Oral Argument, the Court is satisfied that under the circumstances of this case Mr.
Wright’s counsel made reasonable efforts to comply with their obligations under the
For the foregoing reasons, the Philadelphia District Attorney’s Office’s Motion to
Enforce is denied.
An appropriate Order follows.
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE
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