Pace-O-Matic, Inc. v. Eckert, Seamans Cherin & Mellott, LLC

Filing 385

MEMORANDUM re. In camera review documents (Order to follow as separate docket entry) Signed by Honorable Jennifer P. Wilson on 5/9/24. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PACE-O-MATIC, INC.,
Plaintiff,
v.
ECKERT, SEAMANS CHERIN &
MELLOTT, LLC, et al.,
Defendants.

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Civil No. 1:20-CV-00292

Judge Jennifer P. Wilson

MEMORANDUM
Before the court is a longstanding discovery dispute regarding 182
documents purportedly protected by attorney-client privilege. United States
Magistrate Judge Joseph Saporito, Jr. previously found that Defendants and third
party Greenwood Gaming & Entertainment, Inc. d/b/a Parx Casino (“Parx”) were
judicially estopped from exercising attorney-client privilege with respect to these
documents. (Doc. 167.) This court affirmed Judge Saporito’s decision. (Doc.
223.) The Third Circuit reversed and then issued a mandate vacating this court’s
order and remanding the instant dispute. (Doc. 356.) After remand, the court
conducted an in camera review of the documents. Based on that in camera review,
the court finds that the vast majority of these documents are protected by attorneyclient privilege.

1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
There have been multiple opinions written on the immediate discovery issue
and there is not a dispute about the factual or procedural history. As such, the
court will only restate the factual background and procedural history necessary for
clarity in this opinion. Plaintiff, Pace-O-Matic, Inc. (“POM”), initiated this action
in February 2020 against Defendants Eckert, Seamans Cherin & Mellott, LLC,
Mark S. Stewart, and Kevin M. Skjoldal (collectively, “Eckert”) for an alleged
breach of Eckert’s fiduciary duties to POM. (Doc. 1.) POM alleges that this
breach stems from Eckert’s representation of both POM and third-party
competitor, Parx, in matters in which POM and Parx had competing and adverse
commercial interests in the Commonwealth Court of Pennsylvania relating to
POM’s development, production, and licensure of electronic “skill games” sold in
Pennsylvania. (Doc. 166, pp. 1−2.)2
Eckert’s representation of POM began in 2016 in Virginia and was limited
to Virginia despite POM’s similar activity in Pennsylvania. That was because
Eckert represented Parx in Pennsylvania. (Id. at 3−4.) In the summer of 2018,
POM filed two lawsuits in the Commonwealth Court of Pennsylvania through

1

Any additional factual recitation that is necessary for the discussion of each specific issue is
included in the Discussion section of this memorandum.
2

For ease of reference, the court utilizes the page numbers from the CM/ECF header.
2

other counsel relating to the seizure and removal of some of its skill games in
Pennsylvania.3 (Id. at 3.) During this litigation in the Commonwealth Court,
Parx, purportedly through its counsel, Hawke McKeon & Sniscak (“HMS”) and
Ballard Spahr, LLP (“Ballard”), filed amicus briefs in opposition to POM’s
position, and motions to intervene. (Id. at 4−5.) In January 2020, POM learned
that Eckert was allegedly involved in some capacity with Parx’s representation in
the Commonwealth Court cases, assuming positions materially adverse to POM’s
position despite Eckert’s ongoing representation of POM in Virginia. (Id. at 5.)
After POM requested that Eckert withdraw from representing Parx in adverse
litigation in Pennsylvania, Eckert instead withdrew from representing POM in
Virginia. (Id.)
This discovery dispute has been extensively briefed and Judge
Saporito allowed oral argument on these issues on October 20, 2020,
during which the parties agreed to allow Judge Saporito to conduct an
in camera review of the subject documents. ([Doc. 166, p.] 6−7.)
Thereafter, the parties met and conferred to determine the documents
to be submitted to Judge Saporito. (Id. at 7.) These documents were
provided to Judge Saporito in December 2020, and Judge Saporito
issued his memorandum and order on February 16, 2021. (Docs. 87,
88.)
On March 2, 2021, Eckert, HMS, and Parx filed separate appeals
of Judge Saporito’s decision, each only appealing section III. I. of Judge
Saporito’s memorandum and paragraph 4 of Judge Saporito’s order
pertaining to judicial estoppel. (Docs. 93, 95, 97.) The court granted
this appeal, finding that Judge Saporito erred procedurally by raising
the issue of judicial estoppel sua sponte without the benefit of briefing
3

These cases are located at docket numbers 418 MD 2018 and 503 MD 2018. (Doc. 166, p. 4.)
3

from counsel and remanded the matter for further consideration. (Docs.
113, 114.) On remand, Judge Saporito allowed the parties to brief the
issue of judicial estoppel. (Doc. 166, p. 8.) Following further
consideration, including a re-review of the allegedly privileged
documents, Judge Saporito again concluded that the attorney-client
privilege invoked by Eckert was inapplicable on judicial estoppel
grounds and that the work product doctrine was likewise inapplicable.
(Id. at 35−36.)
(Doc. 222, pp. 3–4.)
On November 30, 2021, Eckert, Parx, and HMS appealed Judge Saporito’s
decision. (Docs. 168, 170, 172.) On July 5, 2022, this court issued an opinion and
order affirming Judge Saporito’s decision. (Docs. 222, 223.) Eckert, Parx, and
HMS moved for reconsideration. (Docs. 230, 232, 234.) While these motions
were pending, the court granted a joint motion by Eckert, Parx, and HMS to stay
production of the disputed documents until their motions for reconsideration were
resolved. (Doc. 239.) On August 11, 2022, the court denied the motions for
reconsideration but granted a request to certify the issue for interlocutory appeal.
(Doc. 252.)
Eckert, Parx, and HMS petitioned for interlocutory review under § 1292(b).
(Doc. 356, p. 9.) A motions panel of the Third Circuit granted the petition, and the
Circuit consolidated the appeals. (Id.) The Circuit concluded that this court erred
and abused its discretion by applying judicial estoppel. (Id. at 9, 14–15.)
On January 12, 2024, the court held an on-the-record status conference with
the parties. (Doc. 363.) Per the parties’ request, the court issued a briefing
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schedule for them to address whether Judge Saporito had determined whether,
notwithstanding the application of judicial estoppel, the documents at issue were
protected by attorney-client privilege. The issue was briefed, and this discovery
dispute is ripe for review. (Docs. 369, 372, 375.)
DISCUSSION
As a preliminary matter, the court finds that Judge Saporito never decided
whether, absent judicial estoppel, the documents at issue would be protected by
attorney client privilege. During the on-the-record status conference, Eckert,
HMS, and Parx asserted that Judge Saporito had found the documents would be
protected by attorney-client privilege. (Doc. 363.) But they were unable to point
to any part of his memorandum or order stating that. Their briefs have the same
shortcoming. (Docs. 369, 376.) In fact, neither Judge Saporito nor this court have
ever determined whether attorney-client privilege applies to these 182 documents.
Therefore, the court will do so now.
Because this is a diversity case, Pennsylvania law governs whether attorneyclient privilege attaches to a particular document. (Doc. 353, p. 10 (citing Fed. R.
Evid. 501; United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 965 (3d Cir.
1988)). The Supreme Court of Pennsylvania has stated that, “[b]ecause it ‘has the
effect of withholding relevant information from the factfinder,’ courts construe the
privilege narrowly to ‘appl[y] only where necessary to achieve its purpose.’” In re
5

Estate of McAleer, 248 A.3d 416, 425–26 (Pa. 2021) (quoting Fisher v. United
States, 425 U.S. 391, 403 (1976)).
Under Pennsylvania law, “the 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). Attorney-client
privilege extends to confidential communications between lawyers and agents of a
client where those agents are indispensable to or facilitate the lawyer’s ability to
provide legal advice. BouSamra v. Excela Health, 210 A.3d 967, 985 (Pa. 2019).
As this court has noted, “communications, even between lawyer and client,
are not privileged unless they are made for the purpose of rendering legal advice
or, to use another formulation, unless they related to the rendition of ‘professional
legal services.’” (Doc. 382, p. 9 (citation omitted) (quoting In re Chevron Corp.,
749 F. Supp. 2d 141, 165 (S.D.N.Y. 2010)).) Sometimes lawyers provide nonlegal advice or services, which does not give rise to attorney-client privilege. (Id.
(citing United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp.
156, 164 (E.D.N.Y. 1994)) (“Lobbying conduct by attorneys does not necessarily
constitute legal services for purposes of the attorney-client privilege.”).)
Determining whether a privilege applies is a fact-specific inquiry.
“Ultimately, we must look to see whether the primary or predominant purpose of
6

the communication was to procure legal advice, as opposed to legislative,
lobbying, or public relations services.” (Doc. 353, p. 26; See Burton v. R.J.
Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 484 (D. Kan. 1997) (“Legal advice
must predominate for the communication to be protected. The privilege does not
apply where the legal advice is merely incidental to business advice.”).)
Of the documents at issue, one is a text message exchange, HMS-000558.4
The other 181 consist of email threads and attachments. The documents generally
relate to POM’s Commonwealth Court cases including Parx’s amicus briefs and
motions to intervene. The communications at issue most often involve outside
counsel for Parx, including HMS attorneys, such as Kevin McKeon (“McKeon”),
Ballard Spahr, LLP attorney Adrian King (“King”), and Eckert attorneys
Defendant Mark Stewart (“Stewart”) and Defendant Kevin Skjoldal (“Skjoldal”).
Occasionally, they include Parx in-house counsel and external lobbyists. Some
lobbyists are also attorneys, such as Richard Gmerek and Sean Schafer. (Doc. 87,
p. 26.) Others are solely lobbyists, such as Charlie Lyons and Pete Shelly. (Id.)
Some communications are with third parties, such as Mike Allen, about whom no

4

The documents at issue are identified by two distinct naming protocols. Documents produced
by Eckert are identified by a series of numbers separated by underscores and terminate with .pdf.
Documents produced by HMS are bates labeled with the letters HMS followed by the bates
number.
7

additional information is provided. Lastly, some communications are with
Pennsylvania state employees, such as Karen Romano.
Based on the court’s in camera review, attorney-client privilege protects
from disclosure the vast majority of the documents at issue. In these documents,
Parx’s counsel coordinated Parx’s legal strategy to intervene in POM’s
Commonwealth Court cases. Other documents are not protected. They are
transmittal communications, relate to public relations and not legal advice, or
consist of communications which have already been deemed unprivileged. Lastly,
some documents are partially protected by attorney-client privilege. The court will
address these categories in turn.
A. Documents Protected by Attorney-Client Privilege
Based on the court’s in camera review, the following documents are
protected by attorney-client privilege. They were made for the purpose of
providing or obtaining legal advice related to the POM Commonwealth Court
cases and are properly withheld. The following documents shall be withheld from
production:
1) 2019_12_13_13_45_48.pdf;

6) 2019_12_18_12_57_27.pdf;

2) 2019_12_14_11_06_16.pdf;

7) 2019_12_18_14_04_35.pdf;

3) 2019_12_16_16_56_58.pdf;

8) 2019_12_18_14_12_23.pdf;

4) 2019_12_18_02_55_49.pdf;

9) 2019_12_18_14_42_06.pdf;

5) 2019_12_18_12_12_16.pdf;

10) 2019_12_18_15_14_03.pdf;
8

11) 2019_12_19_16_22_36.pdf;

37) 2020_01_30_11_34_32.pdf;

12) 2020_01_13_13_05_02.pdf;

38) 2020_01_30_11_34_33.pdf;

13) 2020_01_13_13_26_46.pdf;

39) 2020_01_30_12_03_36.pdf;

14) 2020_01_13_13_39_23.pdf;

40) 2020_01_30_13_04_55.pdf;

15) 2020_01_13_17_16_53.pdf;

41) 2020_01_30_13_06_10.pdf;

16) 2020_01_14_15_49_07.pdf;

42) 2020_02_04_12_05_21.pdf;

17) 2020_01_14_15_55_27.pdf;

43) 2020_02_04_12_53_05.pdf;

18) 2020_01_14_16_24_06.pdf;

44) 2020_02_04_16_21_41.pdf;

19) 2020_01_14_17_37_03.pdf;

45) 2020_02_05_10_24_31.pdf;

20) 2020_01_14_19_46_34.pdf;

46) 2020_02_06_08_19_01.pdf;

21) 2020_01_14_23_55_57.pdf;

47) 2020_02_06_09_56_51.pdf;

22) 2020_01_15_07_49_00.pdf;

48) 2020_02_07_14_10_16.pdf;

23) 2020_01_15_07_50_51.pdf;

49) 2020_02_07_14_10_56.pdf;

24) 2020_01_15_07_51_56.pdf;

50) 2020_02_07_16_11_26.pdf;

25) 2020_01_22_16_28_25.pdf;

51) 2020_02_07_16_19_05.pdf;

26) 2020_01_22_18_44_52.pdf;

52) 2020_02_07_16_47_19.pdf;

27) 2020_01_23_07_21_42.pdf;

53) 2020_02_10_14_38_15.pdf;

28) 2020_01_23_09_19_41.pdf;

54) 2020_02_10_17_48_35.pdf;

29) 2020_01_23_09_40_35.pdf;

55) 2020_02_12_11_58_58.pdf;

30) 2020_01_23_10_54_41.pdf;

56) 2020_02_12_11_59_15.pdf;

31) 2020_01_23_10_58_33.pdf;

57) 2020_02_13_17_35_37.pdf;

32) 2020_01_23_11_19_43.pdf;

58) 2020_02_18_10_57_43.pdf;

33) 2020_01_23_11_29_40.pdf;

59) 2020_02_20_16_10_20.pdf;

34) 2020_01_26_22_47_08.pdf;

60) 2020_02_20_16_16_24.pdf;

35) 2020_01_26_22_45_37.pdf;

61) 2020_02_27_15_07_59.pdf;

36) 2020_01_27_19_04_50.pdf;

62) 2020_05_01_14_25_10.pdf;
9

63) 2020_05_01_14_33_41.pdf;

89) HMS-000254–HMS-000257;

64) 2020_05_01_17_12_49.pdf;

90) HMS-000258–HMS-000261;

65) 2020_05_01_23_09_28.pdf;

91) HMS-000262–HMS-000555;

66) 2020_05_04_09_49_02.pdf;

92) HMS-000558;

67) 2020_05_04_12_24_38.pdf;

93) HMS-000559–HMS-000592;

68) 2020_05_04_12_26_39.pdf;

94) HMS-000593–HMS-000594;

69) 2020_05_04_12_28_31.pdf;

95) HMS-000595–HMS-000628;

70) 2020_05_07_10_48_18.pdf;

96) HMS-000629–HMS-000630;

71) 2020_05_07_11_23_40.pdf;

97) HMS-000631–HMS-000633;

72) 2020_05_07_11_24_31.pdf;

98) HMS-000634–HMS-000637;

73) 2020_05_07_17_02_24.pdf;

99) HMS-000638–HMS-000671;

74) 2020_05_12_10_26_15.pdf;

100)

HMS-000672;

75) 2020_05_12_17_19_04.pdf;

101)

HMS-000673–HMS-000708;

76) 2020_05_14_11_42_01.pdf;

102)

HMS-000710;

77) 2020_05_15_10_13_45.pdf;

103)

HMS-000723–HMS-000724;

78) 2020_05_15_16_12_26.pdf;

104)

HMS-000733–HMS-000736;

79) HMS-000088–HMS-000112;

105)

HMS-000737–HMS-000739;

80) HMS-000113;

106)

HMS-000740–HMS-000741;

81) HMS-000114–HMS-000193;

107)

HMS-000742;

82) HMS-000194–HMS-000198;

108)

HMS-000743–HMS-000744;

83) HMS-000199–HMS-000200;

109)

HMS-000812–HMS-000813;

84) HMS-000201–HMS-000202;

110)

HMS-000814;

85) HMS-000203–HMS-000205;

111)

HMS-000817–HMS-000818;

86) HMS-000206–HMS-000208;

112)

HMS-000819–HMS-000820;

87) HMS-000209–HMS-000249;

113)

HMS-000821–HMS-000823;

88) HMS-000250–HMS-000253;

114)

HMS-000824–HMS-000831;

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115)

HMS-000832–HMS-000833;

139)

HMS-001065–HMS-001066;

116)

HMS-000834–HMS-000839;

140)

HMS-001067–HMS-001076;

117)

HMS-000840–HMS-000842;

141)

HMS-001077–HMS-001080;

118)

HMS-000843–HMS-000846;

142)

HMS-001081–HMS-001082;

119)

HMS-000847;

143)

HMS-001120–HMS-001129;

120)

HMS-000848–HMS-000860;

144)

HMS-001130;

121)

HMS-000861–HMS-000865;

145)

HMS-001133–HMS-001161;

122)

HMS-000866–HMS-000914;

146)

HMS-001162–HMS-001194;

123)

HMS-000915–HMS-000923;

147)

HMS-001195–HMS-001197;

124)

HMS-000924;

148)

HMS-001198;

125)

HMS-000925;

149)

HMS-001201–HMS-001202;

126)

HMS-000927–HMS-000928;

150)

HMS-001203–HMS-001204;

127)

HMS-000929;

151)

HMS-001205–HMS-001220;

128)

HMS-000930;

152)

HMS-001221–HMS-001222;

129)

HMS-000985–HMS-000997;

153)

HMS-001223–HMS-001251;

130)

HMS-000998–HMS-001007;

154)

HMS-001252–HMS-001253;

131)

HMS-001008–HMS-001012;

155)

HMS-001254–HMS-001281;

132)

HMS-001013–HMS-001016;

156)

HMS-001282–HMS-001298;

133)

HMS-001017–HMS-001020;

157)

HMS-001299–HMS-001301;

134)

HMS-001021–HMS-001022;

158)

HMS-001302–HMS-001306;

135)

HMS-001023–HMS-001029;

159)

HMS-001307–HMS-001310;

136)

HMS-001030–HMS-001048;

160)

HMS-001311–HMS-001315;

137)

HMS-001057–HMS-001061;

161)

HMS-001316–HMS-001319.

138)

HMS-001062–HMS-001064;

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B. Transmittal Messages
Certain documents at issue are merely transmittal messages. As Judge
Saporito noted in an uncontested portion of a prior opinion, “‘[t]ransmittal
documents themselves are not privileged unless they reveal the client’s
confidences.” (Doc. 87, p. 22 (quoting Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D.
58, 79 (S.D.N.Y. 2010).) Based on the court’s in camera review, the following
documents are non-privileged transmittal messages. They contain neither legal
advice nor confidential client information. Accordingly, these documents are not
protected from disclosure and shall be produced to POM:
1) 2020_01_16_18_09_26.pdf;
2) 2020_01_16_19_41_46.pdf;
3) 2020_01_17_16_45_14.pdf;
4) 2020_05_11_12_53_48.pdf;
5) HMS-000939–HMS-000941.
C. Public Affairs Communications
Certain purportedly privileged communications are correspondence between
“lobbyists and public relations professionals. In particular, these include emails
exchanged with Richard Gmerek and Sean Schafer, both of whom are lawyerlobbyists, and with Pete Shelly and Charlie Lyons, both of whom are non-lawyer
public affairs professionals.” (Doc. 87, p. 26.)

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As Judge Saporito noted in a prior opinion, “[w]ith respect to the lawyerlobbyists, Gmerek and Schafer, it is axiomatic that communications, even between
lawyer and client, are not privileged unless they are made for the purpose of
rendering legal advice or, to use another formulation, unless they related to the
rendition of professional legal services.” (Id. (quoting In re Chevron, 749 F. Supp.
2d at 165) (internal quotation marks omitted).)
These communications were not made for the purpose of obtaining or
rendering legal advice. Rather, their purpose is public relations. As a result, the
following documents are not protected by attorney-client privilege and shall be
produced:
1) 2019_12_13_15_24_35.pdf;
2) 2019_12_13_16_58_02.pdf;
3) 2019_12_13_17_04_24.pdf;
4) 2019_12_13_17_05_37.pdf;
5) HMS-000556–HMS-000557.
D. Communications Previously Found Not Privileged
Certain documents consist of a reply to a document previously found to not
be protected by privilege. Such is the case with the documents identified as
2020_01_19_16_01_31.pdf and HMS-000931–HMS-000933. These documents
consist of email threads in which the most recent email is a reply to the document
identified as HMS-000950-HMS-000951. HMS-000950-HMS-000951 was found
13

to not be protected by privilege and was ordered to be produced. (Doc. 87, pp. 23–
24; Doc. 88.) The most recent email in 2020_01_19_16_01_31.pdf and HMS000931–HMS-000933 were not made for the purpose of providing or obtaining
legal advice. They are not protected by attorney-client privilege and the court will
order them produced.
Likewise, the document identified as HMS-000934–HMS-000935 consists
of a portion of the communication, identified as HMS-000950–HMS-000951,
which was previously found to be unprotected and was ordered produced. (Doc.
87, pp. 23–24; Doc. 88.) Because it is not privileged, the court will order the
production of HMS-000934–HMS-000935.
Finally, the document identified as HMS-000946–HMS-000948 consists of
an email thread. But the majority of the thread is comprised of the document
identified as HMS-000957–HMS-000958, which was previously found not
protected and ordered produced. (Doc. 87, pp. 23–24; Doc. 88.) No portion of
HMS-000946–HMS-000948 which has not previously been produced was made to
obtain or provide legal services. It is not protected and the court shall order it
produced.
Accordingly, the following documents are not privileged and the court will
order their production without redaction:
1) 2020_01_19_16_01_31.pdf;
14

2) HMS-000931–HMS-000933;
3) HMS-000934–HMS-000935;
4) HMS-000946–HMS-000948.
E. Partially Protected Documents
Certain documents at issue are email threads in which portions are protected
by attorney-client privilege and other portions are not. The most common example
is one in which Stewart or McKeon have unprivileged communications with third
parties, which often but not always include state employees. Stewart or McKeon
then forward the unprivileged communication which provides the basis for
subsequent confidential communications made for the purpose of providing legal
advice. These subsequent communications are protected by attorney-client
privilege.
The document identified as 2020_01_13_18_05_01.pdf is an email thread
with an attachment. The most recent email in the thread and the attachment are
protected by attorney-client privilege. But the earlier email in the thread is
unprivileged correspondence with multiple state employees. Accordingly, the
court will order the production of 2020_01_13_18_05_01.pdf with the attachment
and the most recent email in the thread redacted.
The documents identified as 2020_01_17_16_39_22.pdf and
2020_01_17_16_51_18.pdf are email threads in which the most recent email was
15

sent on January 17, 2020. Both threads include two unprivileged emails, dated
January 16, 2020. Specifically, they include an unsolicited message from a third
party, Mike Allen, to attorney Kevin McKeon and another unidentified HMS
recipient. They also include a transmittal message in which McKeon forwarded
Mike Allen’s email to Mark Stewart. The subsequent portions of the email thread
dated January 17, 2020 are privileged. Therefore, the court will order disclosure of
2020_01_17_16_39_22.pdf and 2020_01_17_16_51_18.pdf with those portions
originally sent on January 17, 2020 redacted.
The document identified as 2020_01_17_16_23_45.pdf is comprised of an
email thread with the most recent email correspondence between Kevin McKeon,
Mark Stewart, Adrian King, and Richard Gmerek. The most recent email in the
thread is protected by attorney-client privilege. But all earlier emails in the thread
are non-privileged. They essentially consist of correspondence with Karen
Romano in her official capacity, transmittal of that correspondence, and
acknowledgement of receipt. Therefore, the court shall order production of
2020_01_17_16_23_45.pdf with the most recent email in each document redacted.
The documents identified as 2020_04_07_11_31_00.pdf and HMS0001326–HMS-001330 consist of email threads with privileged correspondence
between Eckert and HMS attorneys as well as Adrian King. But they also consist
of non-privileged correspondence between Kevin McKeon and Karen Romano and
16

McKeon’s transmission of that correspondence, dated April 6, 2020 at 3:01 p.m.,
to attorneys Stewart, Hittinger, and King. McKeon’s correspondence with
Romano and his transmission of that correspondence are not privileged. Therefore,
the court will order the production of 2020_04_07_11_31_00.pdf and HMS0001326–HMS-001330 with the portions subsequent to McKeon’s transmittal
message redacted.
The document identified as HMS-000942–HMS-000945 is an email thread
between Stewart, McKeon, King, and Gmerek. The two most recent emails in the
thread are protected by attorney-client privilege. But this thread is continuation of
HMS-000946–HMS-000948. As noted above, HMS-000946–HMS-000948 is not
protected. Therefore, the court will order production of HMS-000942–HMS000945 with the two most recent emails in the thread redacted.
Accordingly, the following documents are partially protected and the court
will order redacted versions to be produced in accordance with this memorandum:
1) 2020_01_13_18_05_01.pdf;
2) 2020_01_17_16_39_22.pdf;
3) 2020_01_17_16_51_18.pdf;
4) 2020_01_17_16_23_45.pdf;
5) 2020_04_07_11_31_00.pdf;
6) HMS-001326–HMS-001330;
7) HMS-000942–HMS-000945.
17

CONCLUSION
For the reasons stated above, the court will order the production of the
documents described above. An appropriate order will follow.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: May 9, 2024

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