WARTLUFT et al v. THE MILTON HERSHEY SCHOOL AND SCHOOL TRUST et al

Filing 164

MEMORANDUM ORDER - 1. On or before August 1, 2018, the plaintiffs shall provide the court and opposing counsel with a comprehensive privilege log. 2. In addition, on or before August 8, 2018, the plaintiffs shall provideto the court, for its in camera inspection unredacted and redacted copies of all responsive documents. Signed by Magistrate Judge Martin C. Carlson on July 12, 2018. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JULIE ELLEN WARTLUFT, et al.,
Plaintiffs

v.
THE MILTON HERSHEY SCHOOL
AND SCHOOL TRUST, et al.,
Defendants

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Civil No. 1:16-CV-2145
(Chief Judge Conner)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On June 29, 2016, the plaintiffs, Julie Ellen Wartluft and Frederick Bartels,
acting individually and on behalf of the estate of their deceased daughter, filed this
lawsuit against the Milton Hershey School and the Hershey Trust. (Doc. 1.) This
lawsuit arose out of a singular tragedy, the suicide of the plaintiffs’ 14 year old
daughter in June of 2013, at about the time of her expulsion from the Milton
Hershey School, following two episodes of hospitalization for severe depression.
(Id.) The plaintiffs alleged that this suicide was a result of unlawful discriminatory
practices by the defendants, and specifically alleged that the Milton Hershey
School had a two-hospitalization policy which led to the expulsion of emotionally

fragile students once those students underwent two hospitalizations for mental
illness. These allegations formed one of the legal and factual pillars for this
lawsuit. (Id.)
This case now comes before us for consideration of a motion to compel
production of documents filed by the defendant, Milton Hershey School, (Doc.
135), that seeks to compel production of what the plaintiff describes as
communications with Ric Fouad, an attorney who is also the President of an
advocacy group known as Protect Hershey’s Children, Inc., (PHC). While the
motion raises discrete discovery issues regarding the scope of the attorney-client
privilege as it applies to specific documents in the context of a lawsuit brought by
Julie Ellen Wartluft and Frederick Bartels in the wake of the death of their
daughter who was a student at the Milton Hershey School, the parties’ briefs and
arguments range far beyond this narrow issue and plunge into a longstanding and
intractable conflict between the Milton Hershey School and PHC. This conflict has
spanned years and is marked by competing accusations, mutual recriminations and
shared, profound, and unshakeable suspicions.
For its part, the Milton Hershey School apparently views PHC, and Fouad,
as unscrupulous provocateurs, who disseminate baseless allegations against the
Milton Hershey School, and then instigate grieving families to file meritless
lawsuits in pursuit of their ideological goals. In the view of the Milton Hershey
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School, Fouad opportunistically asserts his attorney status to frustrate legitimate
discovery, while disclaiming the role of counsel to avoid the ethical constraints the
role imposes when engaging unwarranted attacks upon the school. PHC and Fouad,
in turn, identify themselves as public spirited whistle-blowers, who believe that
they are the victims of a campaign of harassment, oppression and unwarranted
calumny orchestrated by a multi-billion dollar corporate monolith. Moreover,
while acknowledging the mantle of an investigative reformer, Fouad, an attorney,
also cloaks himself as an unpaid pro bono legal advisor to various individuals who
are allegedly wronged by the Milton Hershey School, including the plaintiffs. In
that capacity Fouad and the plaintiffs insist that the assertion of privilege over
certain contested documents is entirely appropriate.
As they litigate this, their latest discovery dispute, each of these protagonists
invites us to adopt their characterization of this underlying, on-going, and
intractable conflict, and rule upon this motion through the prism of their very
different perspectives regarding the broader motives and motivations they ascribe
to one another. As we have done in the past when considering other discovery
dispute, we will decline this invitation to foray deeply into the longstanding and
mutual grudges that divide PHC and the Milton Hershey School, and adopt either
of the categorical characterizations made by the parties in this case regarding the
motives and actions of the opposing party. Instead, following our review of the
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parties’ initial submissions (Docs. 144, 149, 150), we choose to address the legal
question regarding whether the attorney-client or work-product privileges applies
to particular documents in the fashion described by the Supreme Court which has
stated that: “claims of attorney-client privilege must be asserted document by
document, rather than as a single, blanket assertion.” United States v. Rockwell
Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990).
Toward that end IT IS ORDERED as follows:
1.

On or before August 1, 2018, the plaintiffs shall provide the court and

opposing counsel with a comprehensive privilege log identifying all of the
documents in its possession custody or control which are responsive to the
defendants’ discovery demands and motion to compel over which claims of
privilege are being asserted.
2.

In addition, on or before August 8, 2018, the plaintiffs shall provide

to the court, for its in camera inspection unredacted and redacted copies of all
responsive documents which have been withheld so we may assess the claims of
privilege in the manner prescribed by the Supreme Court “document by document,
rather than as a single, blanket assertion.” United States v. Rockwell Int'l, 897
F.2d 1255, 1265 (3d Cir. 1990). The court will then evaluate the individual claims
of privilege.

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So ordered this 12th day of July, 2018.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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