Parno v. Kane et al

Filing 35

ORDER Granting pltf's mtn to compel 28 . Mr. Steele shall produce thedocuments, information, and/or objects demanded by the subpoena to Pltfwithin (20) days of the date of this order under penalty of contemptSigned by Honorable Sylvia H. Rambo on 11/30/17. (ma) (Main Document 35 replaced on 11/30/2017) (ma).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GLENN A. PARNO,

:
:
:
Plaintiff,
:
v.
:
:
:
KATHLEEN KANE, RENEE
:
MARTIN, DAVID PEIFER, BRADEN :
COOK, and WILLIAM NEMETZ
:
:
Defendants.
:

Civil No. 1:16-cv-1949

Judge Sylvia H. Rambo

ORDER
The background of this order is as follows: Plaintiff asserts a claim, via an
amended complaint (Doc. 17), against, inter alia, Defendant Kathleen Kane
(“Kane), the former Attorney General for the Commonwealth of Pennsylvania, for
violation of Plaintiff’s constitutional right to equal protection of the laws pursuant
to 42 U.S.C. § 1983.1 According to the amended complaint, in 2014, Kane publicly
released Plaintiff’s name in connection with inappropriate emails that were found
in Plaintiff’s email account while he was employed at the Office of the Attorney
General (“OAG”) of the Commonwealth of Pennsylvania. The crux of Plaintiff’s
claim is that hundreds of similarly situated individuals also received or sent the
same emails, many of whom, unlike Plaintiff, were considered high-volume
senders of inappropriate emails, and yet Kane chose not to publicly release the
1

The amended complaint also includes a claim for deprivation of procedural due process, which
this court dismissed on November 9, 2017. (See Doc. 37.)

identity of those other individuals. Kane was subsequently charged, tried, and
convicted in the Pennsylvania Court of Common Pleas of Montgomery County of
perjury, false swearing, abuse of office/official oppression, and obstructing the
administration of law or other governmental function based on her corrupt conduct
while Attorney General.
Presently before the court is Plaintiff’s motion to compel compliance with a
subpoena duces tecum (Doc. 32) directed to Kevin R. Steele (“Steele”), the District
Attorney of Montgomery County, seeking disclosure of criminal investigative
information compiled in Kane’s criminal case. Steele objects to the subpoena on
the grounds that 1) compliance would violate the Pennsylvania Criminal History
Record Information Act (“CHRIA”), and 2) even if CHRIA does not apply, the
court should deny the motion to compel based on the “executive” or
“governmental” privilege. The court will address each argument in turn.
A.

Privilege Created by CHRIA

CHRIA provides, in relevant part, that:
Investigative and treatment information shall not be
disseminated to any department, agency or individual
unless the department, agency or individual requesting
the information is a criminal justice agency which
requests the information in connection with its duties,
and the request is based upon a name, fingerprints,
modus operandi, genetic typing, voice print or other
identifying characteristic.

2

18 Pa. C.S. § 9106(c)(4). Plaintiff contends that CHRIA does not create a privilege
not to disclose relevant information in relation to claims brought under federal law.
Pursuant to Federal Rule of Civil Procedure 26, “parties may obtain
discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action.” Fed. R. Civ. P. 26(b)(1). However, “[a]ny
material covered by a properly asserted privilege would necessarily be protected
from discovery, pursuant to Rule 26(b)(1).” Pearson v. Miller, 211 F.3d 57, 65 (3d
Cir. 2001). Federal Rule of Evidence 501 governs evidentiary privileges, and states
that they:
shall be governed by the principles of the common law as
they may be interpreted by the courts of the United States
in the light of reason and experience. However, in civil
actions and proceedings, with respect to an element of a
claim or defense as to which State law supplies the rule
of decision, the privilege of a witness, person,
government, State, or political subdivision thereof shall
be determined in accordance with State law.
Fed. R. Evid. 501. “In general, federal privileges apply to federal law claims, and
state privileges apply to claims arising under state law.” Pearson, 211 F.3d at 66.
Thus, in federal court, “[c]ommon law governs a claim of privilege unless the U.S.
Constitution, a federal statute, or a rule prescribed by the Supreme Court provides
otherwise.” Benedict v. McMahon, 315 F.R.D. 447, 452 (E.D. Pa. 2016). District
courts within the Third Circuit have consistently “concluded that CHRIA does not
compel a federal court to recognize a blanket privilege against the discovery of
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police reports containing investigative information or complaints against third
persons simply because the Pennsylvania legislature may have enacted a privilege,
as that does not render the privilege as one fairly characterized as a principle of
common law.” Id. (citing Griffin–El v. Beard, Civ. No. 06-cv-2719, 2009 WL
1606891, *15 (E.D. Pa. June 8, 2009); see also Guerrido–Lopez v. City of
Allentown, Civ. No. 15-cv-1660, 2016 WL 1182158, *2 (E.D. Pa. Mar. 28, 2016)
(holding that CHRIA did “not justify denying discovery of evidence relevant to
claims brought against municipal defendants under federal civil rights statutes.”);
Curtis v. McHenry, 172 F.R.D. 162, 164 (W.D. Pa. 1997) (compelling production
of police reports and finding no privilege for investigative information). Counsel
for Steele does not deny that courts within the Third Circuit have rejected any
privilege based on CHRIA for federal claims, and instead argues that this court can
exercise its discretion not to enforce compliance with the subpoena. The court sees
no reason to step out of line with the other district courts in the Third Circuit, and
thus will not deny Plaintiff’s motion to compel on this basis.
B.

Law Enforcement Investigatory Privilege

Steele next argues that the executive or law enforcement investigatory
privilege relieves him of having to comply with the subpoena duces tecum. The
investigatory privilege is a qualified privilege that prevents disclosure of “certain
information whose disclosure would be contrary to the public interest,” and
4

“requires the court to balance the government’s interest in ensuring the secrecy of
the documents whose discovery is sought against the need of the private litigant to
obtain discovery of relevant materials in possession of the government.”
Pennsylvania v. Kauffman, 605 A.2d 1243, 1246 (Pa. Super. Ct. 1992) (citing
Frankenhauser v. Rizzo, 59 F.R.D. 339, 342-44 (E.D. Pa. 1973)). The factors the
court should consider in determining whether the law enforcement investigatory
privilege applies are:
(1) the extent to which disclosure will thwart
governmental processes by discouraging citizens from
giving the government information; (2) the impact upon
persons who have given information of having their
identities disclosed; (3) the degree to which
governmental self-evaluation and consequent program
improvement will be chilled by disclosure; (4) whether
the information sought is factual data or evaluative
summary; (5) whether the party seeking the discovery is
an actual or potential defendant in any criminal
proceeding either pending or reasonably likely to follow
from the incident in question; (6) whether the police
investigation has been completed; (7) whether any
intradepartmental disciplinary proceedings have arisen or
may arise from the investigation; (8) whether the
plaintiff's suit is non-frivolous and brought in good faith;
(9) whether the information sought is available through
other discovery or from other sources; and (10) the
importance of the information sought to the plaintiff's
case.
Frankenhauser, 59 F.R.D. at 344 (footnote omitted).2
2

As recently stated by the Western District of Pennsylvania, although the Third Circuit has not
adopted the Frankenhauser factors, the holding in Frankenhauser “continues to be influential at
the district-court level of this circuit” and it is likely “that the Third Circuit would adopt its
5

Here, Steele identifies only factor number six as weighing in favor of
applying the privilege because the criminal case against Kane is currently on
appeal. The sixth factor, however, addresses whether the police investigation has
been completed, not whether the prosecution resulting from that investigation has
reached a final conclusion. The court cannot identify any other factors that weigh
in favor of the privilege’s application, and at a minimum the non-frivolous nature
of Plaintiff’s suit weighs against applying the privilege. On the record currently
before the court, no factor weighs in favor of the law enforcement investigatory
privilege, and thus the court finds that it does not apply.
Accordingly, for the reasons stated herein, IT IS HEREBY ORDERED
that Plaintiff’s motion to compel compliance with a subpoena duces tecum directed
to Kevin R. Steele (Doc. 28 ) is GRANTED, and Mr. Steele shall produce the
documents, information, and/or objects demanded by the subpoena to Plaintiff
within twenty (20) days of the date of this order under penalty of contempt.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: November 30, 2017

balancing test if presented with the question.” Smith v. Rogers, Civ. No. 15-cv-0264, 2017 WL
2937957, *7 (W.D. Pa. July 10, 2017).
6