McSparran v. Commonwealth Of Pennsylvania et al

Filing 76

MEMORANDUM re Mtns for Protective Order 63 , in Limine To Exclude Emails 65 and for Exttm and to Take Pltf's Deposition 75 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 2/18/16. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

PATRICIA MCSPARRAN,
Plaintiff

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: CIVIL NO. 1:13-CV-1932
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v.
COMMONWEALTH OF
PENNSYLVANIA, et al.,
Defendants

MEMORANDUM
I.

Introduction
We are considering a motion for protective order, a motion in limine, and a

request to amend a prior order. (Doc. 63; Doc. 65; Doc. 70). This case relates to a
complaint in which Plaintiff alleges that Defendants discriminated against her on the basis
of sex in violation of Title VII of the Civil Rights Act of 1964. (Doc. 18). The parties are
currently engaged in discovery – a process that has been fraught with contention. In the
most recent dispute, Defendants seek: (1) a protective order to preclude Plaintiff‟s
discovery of information they claim is protected by attorney-client privilege; and (2) to
exclude evidence of pornographic emails sent or received by employees of
Pennsylvania‟s Department of Environmental Protection (DEP). (Doc. 63; Doc. 65). At
the same time, Plaintiff asks us to amend a prior order in which we instructed her to
produce metadata associated with electronically stored information. (Doc. 70). For the
reasons discussed below, we will deny the motion for protective order, grant the motion in
limine, and grant the request to amend.

II.

Discussion
A.

Motion for Protective Order

On November 18, 2015, Plaintiff deposed Renata Moseley. (Doc. 72-3).
Moseley, a Human Resources Analyst at DEP, investigated and responded to the charges
of sex discrimination that Plaintiff filed with the Equal Employment Opportunity
Commission. (Doc. 72-3 at 6). During the deposition, Plaintiff‟s counsel inquired about
Moseley‟s investigation. (Id. at 10). Defense counsel objected and cautioned Moseley not
to answer any questions concerning actions taken at the direction of agency counsel.
(Id.). Due to this instruction, Moseley declined to answer a series of questions about
specific steps she took during her investigation. In particular, she did not answer the
following questions: (1) whether she checked employee emails; (2) what documents her
investigation produced; (3) who she interviewed; (4) if she took notes; and (5) whether she
reviewed personnel files. (Doc. 72-3).
On December 15, 2015, in accordance with our preferred practice, Plaintiff
sent correspondence to the court notifying us that the parties had reached an impasse on
Moseley‟s deposition. (Doc. 60). In response, Defendants filed a motion for protective
order claiming that the information Plaintiff seeks is shielded from discovery by attorneyclient privilege. (Doc. 63). As we read their brief, Defendants advance two intertwined
theories. First, that Moseley was an employee and agent of DEP, and therefore any legal
advice or direction agency counsel gave Moseley is privileged attorney-client
communication. Second, that Moseley was an agent of agency counsel because she
worked closely with and at the direction of counsel throughout her investigation. Thus,
any communication she had with counsel during her investigation is protected.

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The attorney-client privilege, founded in common law, protects “confidential
communications made between attorneys and clients for the purpose of obtaining or
providing legal assistance to the client.” In re Grand Jury Subpoena, 745 F.3d 681, 687
(3d Cir. 2014). This privilege is not limited to individuals, but extends to circumstances in
which a government agency is the client and an interagency lawyer is the attorney.
Accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975). In addition to the
attorney-client privilege, an analogous doctrine set out in the Federal Rules of Civil
Procedure protects an attorney‟s work product. Specifically, Rule 26(b)(3) states that,
“[o]rdinarily, a party may not discover documents and tangible things that are prepared in
anticipation for litigation or for trial by or for another party or its representative (including
the other party‟s attorney, consultant, surety, indemnitor, insurer, or agent).” FED. R. CIV.
P. 26(b)(3)(A).
We find that neither the attorney-client privilege nor the attorney workproduct doctrine apply in this instance. The attorney-client privilege only applies to
communications; it does not protect disclosure of underlying facts. Upjohn Co. v. United
States, 449 U.S. 383, 395 (1981). As explained by the Supreme Court:
A fact is one thing and a communication concerning that fact is
an entirely different thing. The client cannot be compelled to
answer the question, „What did you say or write to the attorney?‟
but may not refuse to disclose any relevant fact within his
knowledge merely because he incorporated a statement of such
fact into his communication to his attorney.
Id. Here, we agree with Defendants, under their first theory, that Moseley was an agent of
DEP, and therefore any communications between Moseley and agency counsel are
privileged. Id. But the information at issue is not a communication. Plaintiff wants
disclosure of the steps Moseley took during her investigation – what she did, who she
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talked to, where she looked – not disclosure of what agency counsel told her. Thus,
Plaintiff seeks disclosure of underlying facts, and those facts do not become shielded
under attorney-client privilege simply because they may have been included in a
communication between Moseley and counsel. Id.
Similarly, the information Plaintiff seeks does not fall within the boundaries of
the attorney work-product doctrine. The work-product doctrine applies to documents and
tangible things, not facts contained within the documents. See FED. R. CIV. P. 26(b)(3)(A).
Only in the rare circumstance in which a party “attempts to ascertain „historical‟ facts,
which inherently reveal the attorney‟s mental impressions, [do some courts hold that] the
ordinary work-product privilege extend[s] to . . . intangible interests.” See, e.g., Onwuka v.
Fed. Express Corp., 178 F.R.D. 508, 513 (D. Minn. 1997). Here, we again agree with
Defendants, under their second theory, that Moseley was acting as an agent for counsel,
and therefore any work product is protected. See Dempsey v. Bucknell Univ., 296 F.R.D.
323, 329 (M.D. Pa. 2013) (recognizing that person can simultaneously be an agent for the
client and an agent for the attorney). Yet, Plaintiff is not asking Moseley to produce
documents or tangible things prepared in anticipation of litigation, and the steps taken
during Moseley‟s investigation are not historical facts that will inherently reveal agency
counsel‟s opinions and mental impressions. See Onwuka, 178 F.R.D. at 515 (finding that
steps taken to conduct an internal investigation into claims of discrimination and retaliation
do not inherently reveal the attorney‟s mental impressions or opinions).
Accordingly, we will deny Defendants‟ motion for protective order. Plaintiff
may inquire into the steps Moseley took during the course of her investigation. She may
also inquire into the facts Moseley learned during that investigation. Plaintiff may not,

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however, discover the contents of conversations Moseley had with agency counsel or the
contents of conversations Moseley had with other DEP employees while acting at the
direction of agency counsel. Such conversations, whether written or oral, are privileged
attorney-client communications.1
B. Motion in Limine
On November, 18, 2015, Plaintiff provided Defendants with a series of
documents. The documents, which have been submitted in camera for our review, were
copies of emails containing pornographic images, lewd images, and sex-based jokes
demeaning to women. The emails, made public by the Pennsylvania Attorney General‟s
Office, were sent or received by DEP employees while Plaintiff was employed there.
None of the emails, however, involve a named defendant in this case. On December 29,
2015, Defendants filed a motion in limine to preclude Plaintiff‟s use of the emails. (Doc.
65). They argue that the emails are not relevant to Plaintiff‟s claims and that any probative
value that does exist is substantially outweighed by a danger of unfair prejudice. (Id. at 34). Accordingly, Defendants ask us to exclude the emails pursuant to Federal Rules of
Evidence 402 and 403. (Id.).
Evidence is relevant if it makes a fact of consequence more or less probable
than it would be without the evidence. FED. R. EVID. 401. With respect to Plaintiff‟s claims,
the well-established McDonnell Douglas test, by setting out the applicable burden-shifting
1. We express no opinion on whether documents produced during Moseley‟s investigation are
shielded by the work-product doctrine. Although we recognize that Moseley was working as an
agent for counsel, we have not had the benefit of briefing on the issue of whether the investigation
and documents were prepared in anticipation of litigation. See Freedman & Gersten, LLP v. Bank
of Am., N.A., 2010 WL 5139874 (D.N.J. 2010) (holding that the “work product doctrine does not
apply when an attorney undertakes an internal investigation to comply with internal policy”); (Doc.
74-1) (consisting of DEP policy which directs agency counsel with respect to internal investigations
of internal complaints). If the parties reach an impasse on the production of documents, we will
entertain correspondence and motions at that time.
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framework, identifies which facts are of consequence. Under McDonnell Douglas, Plaintiff
first has the burden to set out a prima facie case. To do so, she must show that: (1) she is
a member of a protected class; (2) she was qualified for the position she sought to retain;
(3) she suffered an adverse employment action; and (4) the action occurred under
circumstances that could give rise to an inference of intentional discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). If Plaintiff establishes a prima facie
case, the burden shifts to Defendants to show that they had a legitimate, nondiscriminatory reason for the adverse employment action. St. Mary‟s Honor Ctr. v. Hicks,
509 U.S. 502, 506-07 (1993). If Defendants make this showing, the burden shifts back to
Plaintiff to show that Defendants‟ proffered legitimate, non-discriminatory reason is a
pretext. Id.
The pornographic emails sent or received by non-defendant, DEP
employees bear no relation to these elements. Although they may be relevant to a hostile
work environment claim – such a claim requires the Plaintiff to show that discrimination
was severe or pervasive – all of Plaintiff‟s hostile work environment claims have already
been dismissed. See (Doc. 28). Thus, the emails do not make a fact of consequence
more or less probable. Accordingly, we will grant Defendants‟ motion in limine to preclude
Plaintiff‟s evidentiary use of the emails in question.
C. Request to Amend Order to Produce Metadata
Finally, we take this opportunity to address a recurring issue about a
discovery dispute we previously addressed. At the time Defendants filed the motions sub
judice, they also filed a motion to compel the production of documents and metadata.
(Doc. 66). The motion stated that Plaintiff (1) was producing documents piecemeal, and

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(2) produced electronically stored information – namely emails from within DEP – in nonnative format and without associated metadata. Therefore, Defendants sought to compel
Plaintiff‟s production of all documents and any metadata associated with electronically
stored information.
During a conference call held on January 7, 2016, Plaintiff‟s counsel agreed
to produce the outstanding documents. Because we understood Plaintiff to agree to the
motion as a whole, we issued an order granting Defendants‟ motion and instructed Plaintiff
to produce the required documents and metadata by January 22, 2016. (Doc. 67). On
January 15, 2016, we received correspondence from Plaintiff‟s counsel advising us that
she never agreed to produce metadata, only the requested documents. Therefore, she
asks us to amend our previous order to eliminate the metadata requirement. (Doc. 70).
Metadata is imbedded information that describes the history, tracking, and
management of an electronic document. Williams v. Sprint/United Mgmt. Co., 230 F.R.D.
640, 647 (D. Kan. 2005). Courts generally order the production of metadata if (1) it was
specifically requested in the initial document request, and (2) the producing party has not
yet produced the documents in any form. Aguilar v. Immigration & Customs Enforcement
Div., 255 F.R.D. 350, 357 (S.D.N.Y. 2008). Conversely, “[i]f metadata is not [specifically]
sought in the initial document request, and particularly if the producing party already has
produced the documents in another form, courts tend to deny later requests . . . .” Id.; see
also Romero v. Allstate Ins. Co., 271 F.R.D. 96, 106 (E.D. Pa. 2010); Autotech Tech.
P‟ship v. Automationdirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008).

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Here, Defendants failed to specifically ask for metadata in its requests for
production of documents.2 Moreover, Plaintiff already produced the documents in hard
copy in November of 2014. We find, consistent with the holdings of our sister courts, that
it would be unduly burdensome to require Plaintiff to effectively redo document production
in response to Defendants‟ belated request for metadata. See Romero, 271 F.R.D. at
106; Autotech, 248 F.R.D. at 560 (stating requesting party “was the master of its
production requests; it must be satisfied with what it asked for.”). Accordingly, we will
amend our prior order to relieve Plaintiff of the burden of producing metadata.3
III.

Conclusion
For the reasons discussed above, we will deny Defendants‟ motion for

protective order, grant Defendants‟ motion in limine, and grant Plaintiff‟s request to amend
our prior order. We will issue an appropriate order

/s/ William W. Caldwell
William W. Caldwell
United States District Judge
2. Defendants‟ request for production of documents, consistent with Federal Rule of Civil
Procedure 34(a)(1)(A), does define “documents” to include “any other compilation of data from
which information can be obtained, translated, if necessary, into readily usable form, letters,
memorandum, notes and statements.” Courts have held, however, that “data compilations,” as
that term is used in Rule 34, does not include metadata. See Mich. First Credit Union v. Cumis
Ins. Soc‟y, Inc., No. 05-74423, 2007 WL 4098213 at *2 (E.D. Mich. Nov. 16, 2007); Ky. Speedway,
LLC v. Nat‟l Ass‟n of Stock Car Auto Racing, No. 05-138, 2006 WL 5097354 at *7-8 (E.D.K.Y. Dec.
18, 2006); see also 23 NO. 10 FEDLIT 10 (“Failing to make a specific request for metadata means
there is a good chance it won‟t be included.”). Cf. Haka v. Lincoln Cnty., 246 F.R.D. 577, 578
(W.D. Wis. 2007) (noting party specifically requested all “documents, notes, memos, emails and
metadata”).
3. Citing Federal Rule of Civil Procedure 34(b)(2)(E), Defendants also seem to take exception to
the form in which Plaintiff produced the documents. (Doc. 66 at 4-5). To the extent that
Defendants seek to compel the reproduction of the documents in native format, the motion is
denied. The documents were produced in November 2014 and Defendants did not make an
objection until December 2015. Any objection to the form of production has been waived. See
Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 425-26 (D.N.J. 2009).
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