Carlson et al v. Kane et al

Filing 71

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)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MICHAEL A. CARLSON, et al., : : Plaintiffs : : v. : : JOSH SHAPIRO, in his official : Capacity as Attorney General of the : Commonwealth of Pennsylvania, et al., : : Defendants : CIVIL ACTION NO. 1:15-CV-2452 (Chief Judge Conner) ORDER 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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