FARKAS v. RICH COAST CORPORATION et al

Filing 140

MEMORANDUM OPINION - The Ufema defendants motion to compel the plaintiff to produce the single document withheld in response to document requests 9 and 10 is DENIED. Signed by Magistrate Judge Martin C. Carlson on November 9, 2016. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ABBEY FARKAS,
Plaintiff
v.
RICH COAST CORP., et al.,
Defendants

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Civil No. 1:14-CV-272
(Judge Jones)
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

INTRODUCTION
This matter comes before the Court in the latest in a series of discovery

disputes that have beset this action in the past several months. In this most recent
dispute, the Ufema defendants have moved to compel the plaintiff to disclose a
single document that was withheld in response to document requests that the
defendants propounded during the discovery period. The plaintiff identified the
document as one covered by the attorney-client privilege and the work-product
doctrine, and provided the defendant with a privilege log. Because the parties
continued to argue about whether the single document was properly withheld, the
Court directed the plaintiff to provide a copy to the Court so that it could be
reviewed in camera. The plaintiff has now done so, and following review of the
document and accompanying affidavit from the plaintiff, the Court concludes that

the plaintiff was entitled to withhold the document because it was prepared at the
request of her attorney in connection with this litigation, provided to him in
confidence for purposes of seeking legal counsel and advice, and because the
document also includes the mental impressions of plaintiff’s counsel and,
therefore, qualifies as attorney work-product that contains both facts and opinions.
The motion to compel production will, therefore, be denied.
II.

DISCUSSION
As part of their discovery in this case, the Ufema defendants propounded a

number of document requests upon the plaintiff pursuant to Rule 34 of the Federal
Rules of Civil Procedure. Among those requests was one seeking “all calendars,
schedules, daytimers, timesheets, charts, or other documents setting forth or
depicting the time and/or hours worked by plaintiff of Group 13” and another
seeking “all calendars, schedules, daytimers, timesheets, charts, or other
documents setting forth the time and/or hours worked by plaintiff in connection
with the Film.” (Ufema’s’ Request for Production, Nos. 9 and 10.) In response to
these requests, the plaintiff determined that she had in her possession only one
potentially responsive document, but represented that the document was created at
the request of her attorney in anticipation of litigation, and that it contained
counsel’s handwritten notes and mental impressions. Accordingly, the plaintiff

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refused to produce the document, citing the attorney-client privilege and the workproduct doctrine as defenses to production.
The plaintiff has now furnished the Court with a copy of the document that
she created, along with an affidavit in which she has attested under oath that she
created this document at the request of her lawyer, who in turn used the
information in preparing the plaintiff’s litigation strategy. The document that she
created, and which has been provided to the Court for in camera review, also bears
hand-written notes and impressions of her lawyer.
The plaintiff was previously subjected to examination under oath on October
29, 2013, and against during a deposition that was conducted on May 17, 2016.
The plaintiff has represented that she did not refuse to answer any questions asked
of her during either proceeding.

Nevertheless, during the May 17, 2016

deposition, the plaintiff responded to a question by stating that she believed she
may have had a spreadsheet and personal notes that had been saved to an external
hard drive referred to as “the blue book”.

As it happens, the plaintiff later

determined that she had been wrong about this, and that no such potentially
responsive information was stored on the blue book. She has reaffirmed that the
only document she has in her possession that is potentially responsive to the Ufema
defendants’ document requests is the timesheet that she created at her counsel’s

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request for purposes of obtaining legal advice, which was requested in anticipation
and preparation for this litigation.
This dispute, therefore, turns on the plaintiff’s objection to producing the
single document on the grounds that it is protected by the attorney-client privilege
and the work-product doctrine.
A.

Attorney-Client Privilege

A federal court presiding over a civil action under the court’s diversity
jurisdiction “must look to state law for applicable legal principles on issues of
privilege.” Serrano v. Cheapeake Appalachia, LLC, 298 F.R.D. 271, 280 (W.D.
Pa. 2014); see also Fed. R. Evid. 501; United Coal Co. v. Powell Constr. Co., 839
F.2d 958, 965 (3d Cir. 1988). In this case, the parties agree that Pennsylvania
substantive law governs the claims in this action.
Pennsylvania has codified the attorney-client privilege since 1887.
Nationwide Mut. Ins. Co. v. Fleming, 992 A.2d 65, 68 (Pa. 2010) (Eakin, J.)
(affirming Superior Court by equally divided Supreme Court); accord Upjohn v.
United States, 449 U.S. 383, 389 (1981) (observing that the attorney-client
privilege is “one of the oldest of the privileges for confidential communications
known to the common law.”). In its current form, the statute provides 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
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disclose the same, unless in either case this privilege is
waived upon the trial by the client.
42 Pa. Cons. Stat. Ann. § 5928. “[T]he attorney-client privilege operates in a twoway fashion to protect confidential client-to-attorney or attorney-to-client
communications made for the purpose of obtaining or providing professional legal
advice.” Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011).
In order to establish the applicability of the privilege, a withholding party
must make the following showing:
(1) (When) legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confident (5) by the client, (6) are at his insistence
permanently protected (7) from disclosure by himself or
by the legal adviser, (8) except the protection be waived.
In re Grand Jury, 603 F.2d 469, 474 (3d Cir. 1979) (citing J. Wigmore,
EVIDENCE § 2292 at 554 (1961)); see also In re Impounded, 241 F.3d 308, 316 n.
6 (3d Cir. 2001). The burden of proving that the privilege applies rests with the
party asserting the privilege. In re Grand Jury, 603 F.2d at 474.
In this case, the plaintiff has attested that she created a document in which
she outlined the editing work she did on the film Caveat, and the time spent on
such work, at the request of her attorney in order to obtain legal advice, and in
connection with this litigation. The document plainly comes within the scope of
the attorney-client privilege under Pennsylvania law, as it involves confidential
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communication between the plaintiff and her lawyer for the purpose of obtaining
and providing legal advice regarding the claims in this litigation. The plaintiff is
thus privileged to withhold the document she created and shared confidentially
with her lawyer as the two developed the plaintiff’s claims and legal strategy.
B.

Work-Product Doctrine

Unlike the attorney-client privilege, which is a matter of state law in
diversity cases, the work-product doctrine is governed by a uniform federal
standard that is set forth in Rule 26(b)(3) of the Federal Rules of Civil Procedure.
United Coal, 839 F.2d at 966. The doctrine “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). At the Third Circuit has explained:
The purpose of the work-product doctrine differs from
that of the attorney-client privilege . . . . [T]he attorneyclient 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. In contrast, 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.
Protecting attorneys’ work product promotes the
adversary system by enabling attorneys to prepare cases
without fear that their work product will be used again
their clients.

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Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1427-28
(3d Cir. 1991). Furthermore,
The doctrine is an intensely practical one, grounded in
the realities of litigation in our adversary system. One of
those realities is that attorneys often must rely on the
assistance of investigators and other agents in the
compilation of materials in preparation for trial. It is,
therefore, necessary that the doctrine protect material
prepared by agents for the attorney as well as those
prepared by the attorney himself.
United States v. Nobles, 422 U.S. 225, 238-39 (1975) (footnote omitted).
With these animating principles, Rule 26(b)(3) shields from discovery
“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.”

Fed. R. Civ. P.

26(b)(3)(A).
The rule also establishes two categories of protected work product: fact
work product and opinion work product. “Fact work product is discoverable only
upon a showing [of] ‘substantial need’ and by demonstrating that one cannot
otherwise obtain the ‘substantial equivalent’ of such materials without ‘undue
hardship.’” In re Linerboard Antitrust Litig., 237 F.R.D. 373, 381 (E.D. Pa. 2006)
(quoting Fed. R. Civ. P. 26(b)(3)). Opinion work product, “which consists of
‘mental impressions, conclusions, opinions, or legal theories of an attorney,’ is
afforded almost absolute protection” and it “is discoverable ‘only upon a showing
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of rare and exceptional circumstances.’” Linerboard, 237 F.R.D. at 381 ) (quoting
Cendant, 343 F.3d at 663). An attorney’s notes or memoranda reflecting his
recollections or impressions also constitute opinion work product, regardless of the
factual content of the notes or memoranda. Id. at 385-86. Whether such material
is discoverable typically will turn on whether the witness or other party who
provided counsel with the factual information is available to be deposed. Id. at 387
(availability of interviewed witness to be deposed undermined the necessity that a
litigation adversary “invade the attorney’s files”); In re Grand Jury Investigation,
599 F.2d 1224, 1232 (3d Cir. 1979) (allowing discovery of interview memoranda
pertaining to a deceased witness, but denying discovery with respect to all other
interview memoranda).
In this case, the plaintiff has represented that she prepared a document
summarizing her work on Caveat, and the time spent, at her lawyer’s request, so
that he could develop strategy and prepare for litigation. The facts contained
within this document qualify as work product, as they were prepared at counsel’s
direction as part of the preparation of this litigation. The document the plaintiff
prepared now also bears the mental impressions of counsel, who has written notes
and memoranda in the margins of the document, which clearly reflect counsel’s
mental impressions and legal observations and strategy. The Ufema defendants
have not made any showing to overcome the plaintiff’s invocation of the doctrine’s
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protections with respect to this particular document, and likely could not do so in
any event because there is no question that Ms. Farkas was deposed in this case
and the defendants, therefore, would have had ample opportunity to question her
regarding the very factual matters that are set forth in the document, which merely
summarizes the tasks and time that Ms. Farkas purportedly spent working on the
film, and which are at the center of the legal dispute between the parties. Since the
defendants had adequate opportunity to discover the facts that are reflected on the
document that was prepared at counsel’s direction, and because that document is
plainly protected work product, the Ufema defendants’ motion to compel
production will be denied for this reason as well.1
III.

CONCLUSION
As noted, this matter is before the Court to resolve a narrow and discrete

issue: whether the plaintiff should be required to produce a single document that
she created at the request of her lawyer, which summarizes the work that she
claims to have performed on Caveat, and a summary of the time spent doing so.

The issue before us is limited solely to the question of the production of
this particular document. Of course we recognize that, to the extent
that the plaintiff brings claims based upon allegations that she worked
hours which were not compensated by the defendants, the plaintiff may
have other on-going discovery responsibilities to disclose a compilation
of the hours she claims to have worked, either in response to other
discovery, as part of her initial disclosures, or as part of the trial
preparation in this case.
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The Court has reviewed the document, and concludes that it is protected by both
the attorney-client privilege and the work-product doctrine set forth in Rule
26(b)(3), and thus the plaintiff was entitled to withhold the document in response
to the Ufema defendants’ document requests. The plaintiff has not challenged the
defendants’ ability to seek this information in other ways, such as through
interrogatories or depositions, and the plaintiff has been deposed in this case and
presumably was questioned about her allegations regarding the work that she did
on the film that forms the basis for her legal claims. Whether the Ufemas had
other opportunity to discover this information is, therefore, not before the Court.
Instead, we simply focus our inquiry on whether a particular document could be
withheld on the grounds of privilege or work product, and the Court finds that it
could be. The Ufema defendants’ motion to compel production of the document
will, therefore, be denied.
IV.

ORDER
Accordingly, the Ufema defendants’ motion to compel the plaintiff to

produce the single document withheld in response to document requests 9 and 10 is
DENIED.
So Ordered this 9th day of November 2016.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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