Carlson et al v. Kane et al
ORDER - It is hereby ORDERED that pltfs' objections 63 @ 20-22 to defts' privilege log are OVERRULED. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 8/10/17. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL A. CARLSON, et al.,
JOSH SHAPIRO, in his official
Capacity as Attorney General of the
Commonwealth of Pennsylvania, et al., :
CIVIL ACTION NO. 1:15-CV-2452
(Chief Judge Conner)
AND NOW, this 10th day of August, 2017, upon consideration of defendants’
letter to the court dated June 29, 2017, and the attached documents produced to
the court for in camera review pursuant to our order (Doc. 67) dated June 14,
2017, wherein defendants assert that the enclosed documents are protected from
discovery by attorney-client privilege, and it appearing that plaintiffs dispute that
the government may assert attorney-client privilege, (see Doc. 63 at 20-21), and
contend that, assuming arguendo the privilege exists, the at-issue exception to
privilege should apply, (id. at 21-22), and the court observing first, that the
government may invoke attorney-client privilege in civil litigation, see United
States v. Jicarilla Apache Nation, 564 U.S. 162, 170 (2011); Ross v. City of Memphis,
423 F.3d 596, 601 (6th Cir. 2005); In re Allen, 106 F.3d 582, 600 (4th Cir. 1997); see
also In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 223 (Pa.
2014), and, second, that the at-issue exception to attorney-client privilege does not
automatically apply when advice of counsel may be relevant to litigation, see
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994);
Mine Safety Appliances Co. v. N. River Ins. Co., 73 F. Supp. 3d 544, 571-72 (W.D. Pa.
2014), and the court noting that, upon thorough in camera review of the documents
over which defendants claim attorney-client privilege, all documents contain
communications between government employees and attorneys concerning legal
advice for the benefit of the Commonwealth, qualifying them as protected under the
attorney-client privilege, see Jicarilla Apache Nation, 564 U.S. at 170; In re ThirtyThird Statewide Investigating Grand Jury, 86 A.3d at 223, and the court finding
that the at-issue exception does not apply in the instant circumstance, see Fid. &
Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 520 (E.D. Pa. 1996) (quoting
Rhone-Poulenc, 32 F.3d at 863), it is hereby ORDERED that plaintiffs’ objections
(Doc. 63 at 20-22) to defendants’ privilege log are OVERRULED.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
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