Community Association Underwriters of America, Inc. et al v. Queensboro Flooring Corp.
Filing
192
MEMORANDUM (Order to follow as separate docket entry) re 188 MOTION for Reconsideration of the Court's Memorandum Opinion and Order dated August 20, 2014 (Docs. 182 and 183) filed by Agnieszka Zofia Pozarlik, Arkadiusz Piotr Pozarlik Signed by Magistrate Judge Karoline Mehalchick on 11/25/2014. (cw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
COMMUNITY ASSOCIATION
UNDERWRITERS OF AMERICA, INC.,
a/s/o VILLAGE AT CAMELBACK
PROPERTY OWNER ASSOCIATION,
et al.,
CIVIL ACTION NO. 3:10-CV-1559
(MEHALCHICK, M.J.)
Plaintiffs,
v.
QUEENSBORO FLOORING CORP.,
Defendants.
MEMORANDUM OPINION
This is a consolidated action concerning property damage and personal injury claims
arising out of an explosion and fire in July 2009 that occurred during construction work at a
townhouse located in Tannersville, Pennsylvania. Pending before this Court is Plaintiffs’
Motion for Reconsideration (Doc. 188) of the Court’s Order of August 20, 2014 (Doc. 183).
I.
BACKGROUND AND PROCEDURAL HISTORY
The present dispute concerns the parties originally named in Pozarlik v. Camelback
Associates, Inc., No. 3:11-CV-1349, which was joined into this consolidated action on March
15, 2012. (Doc. 31). Arkadiusz Piotr Pozarlik and Agnieszka Zofia Pozarlik (the
“Pozarliks”) are plaintiffs asserting negligence and loss of consortium claims against several
defendants, including the Village at Camelback Property Owners Association, Inc., and its
property manager, Kathleen Simoncic (together, the “Defendants”). Several cases have been
consolidated into this one action. In the course of discovery in this matter, Defendants, the
Village at Camelback Property Owners Association, Inc., and its property manager,
Kathleen Simoncic, objected to the production of a number of documents sought by the
Pozarlik Plaintiffs, asserting that the same were protected by attorney work product and
attorney-client privileges. The Court previously addressed and resolved a number of
discovery issues between these parties in an Order and Memorandum dated July 3, 2014.
(Doc. 174 and Doc. 175). As part of that Order, the Court reviewed the adequacy of the
privilege log (Doc. 154-5) provided by Defendants to the Plaintiffs in response to Plaintiffs’
discovery requests. Based upon a review of that privilege log, and counsels’ representations
at oral argument, the Plaintiffs were directed to identify to the Defendants those documents
listed on the privilege log which they believe should be disclosed, and the Defendants were
then directed to produce copies of those documents to the Court for an in camera review.
(Doc. 175). On July 17, 2014, Defendants furnished the Court with copies of the allegedly
privileged documents (Doc. 177). 1
On August 20, 2014, after conducting an in camera review of the allegedly privileged
documents, this Court entered an Order (Doc. 183) sustaining in part and overruling in part,
the objections, and ordering production of some of those documents. In pertinent part to the
matter presently before this Court, one document listed on the privilege log, and reviewed
1
Rather than mail the documents directly to the Court’s chambers for review,
Defendants mailed these documents to the office of the Clerk of Court in Scranton. (Doc.
177). The cover letter did not direct that the documents should be filed under seal, and the
clerk’s office filed the documents on the Court’s ECF system. Within hours, the
undersigned’s courtroom deputy, upon reviewing the docket, realized that these documents
were improvidently filed on the docket, and, accordingly, the Court struck them from the
record.
2
by the Court was Document #10, which was designated “Email chain on how to handle
Chernov – 7/13/07” and for which Defendants asserted attorney-client privilege. 2 The first
part of that email chain was an email from Defendant Simoncic to Attorney William Jones,
Defendants’ attorney at that time, asking him to review and call to discuss.
Plaintiffs have now filed a motion for reconsideration (Doc. 188) of the Court’s
Order as to Document #10. A conference call regarding the motion was held on November
24, 2014. Defendants oppose the motion for reconsideration, and further, question whether
Plaintiffs are entitled to use the document at all, notwithstanding any privilege issue, as they
contend Plaintiffs obtained the document through the inadvertent disclosure of the
documents on July 17, 2014. 3
II.
DISCUSSION
A. MOTION FOR RECONSIDERATION
A motion for reconsideration is a device of limited utility and may only be used to
correct manifest errors of law or fact or to present newly discovered precedent or evidence.
Harasco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106
S.Ct. 2895, 90 L.Ed.2d 982 (1986); Sibio v. Borough of Dunmore, 2007 WL 1173769
(M.D.Pa.2007) (Caputo, J.). “In order to prevail, a party seeking reconsideration must
demonstrate one of the following: (1) an intervening change in the controlling law; (2) the
2
Document #10, as included with the documents for in camera review, was a two
page document, which was numbered at the top of the page as “1 of 3” and “2 of 3.”
However, there was no page 3 provided to the Court at the time of review.
3
Defendants have also indicated to the Court that they intend to file a motion for
sanctions related to Plaintiffs’ use of the document, and filing of the document on the record
prior to any ruling by the Court on the motion for reconsideration.
3
availability of new evidence that was not available previously; or (3) the need to correct a
clear error of law or fact or to prevent manifest injustice.” Rinaldi v. Sniezek, 2008 WL
2048661 (M.D.Pa.2008) (Rambo, J.) (citing Max's Seafood Café v. Quinteros, 176 F.3d 669,
677 (3d Cir.1999)). “A motion for reconsideration is not to be used as a means to reargue
matters already argued and disposed of or as an attempt to relitigate a point of disagreement
between the Court and the litigant.” Ogden v. Keystone Residence, 226 F.Supp.2d 588, 606
(M.D.Pa.2002) (McClure, J.) (internal citations omitted).
B. ATTORNEY-CLIENT PRIVILEGE
As discussed in the Court’s memorandum opinion (Doc. 182), for the attorney-client
privilege to attach to a communication, “it must be ‘(1) a communication (2) made between
privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal
assistance for the client.’’” In re Teleglobe Commc’ns Corp., 493 F.3d 345, 359 (3d Cir. 2007)
(quoting Restatement (Third) of the Law Governing Lawyers § 68 (2000) [hereinafter,
“Restatement (3d) Lawyers”]). “‘Privileged persons’ include the client, the attorney(s), and any
of their agents that help facilitate attorney-client communications or the legal
representation.” Teleglobe, 493 F.3d at 359 (citing Restatement (3d) Lawyers § 70). “A
communication is only privileged if it is made ‘in confidence.’” Teleglobe, 493 F.3d at 361
(citing Restatement (3d) Lawyers § 68). “[I]f persons other than the client, its attorney, or their
agents are present, the communication is not made in confidence, and the privilege does not
attach.” Teleglobe, 493 F.3d at 361. Moreover, “[b]ecause the attorney-client privilege
obstructs the truth-finding process, it is construed narrowly.” Westinghouse Elec. Corp. v.
Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991). Further, messages such as fax
cover sheets which merely forward a document to counsel are not protected by attorney
4
client privilege. See Dempsey v. Bucknell Univ., 296 F.R.D. 323, 336 (M.D. Pa. 2013); see Gucci
Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 79 (S.D.N.Y.2010) (“Transmittal documents
themselves are not privileged unless they reveal the client's confidences.”).
Further review of the document in question, including the recently found and
produced pages three and four 4, does clearly indicate that the email in question is a
transmittal message from Defendant Simoncic to Attorney Jones. The text of the email is
simply, “Please read and call me to discuss.” Moreover, the forwarded message is a
discussion and motion between board members of the Defendant Property Owners
Association. As such, there is no privilege attached to any of this document. The Court will
next turn to whether, based upon how Plaintiffs obtained the document, they should be
precluded from using the same.
C. INADVERTENT DISCLOSURE OF DOCUMENTS FOR IN CAMERA REVIEW
During the telephonic conference on Plaintiffs’ motion for reconsideration,
Defendants argued that the manner in which Plaintiffs’ obtained Document #10, namely,
downloading it after it was inadvertently filed on docket, is suspect and should possibly
preclude reconsideration of the Court’s August 20th Order. However, any consideration
under Federal Rule 502(b) relating to the inadvertent disclosure of documents necessarily
4
At the conclusion of the telephonic conference held on November 24, 2014, the
Court ordered Defendants to revisit their files, including contacting Attorney William Jones
and/or members of the board, to determine if the remaining page(s) of the document were
in their possession. Defendants have produced to the Court pages three and four of that
email, explaining that upon checking the documents they received from Attorney Jones,
these additional pages exist.
5
requires a finding that the disclosed materials are privileged. 5 As previously discussed, it is
clear, upon reconsideration of the application of attorney-client privilege to Document #10
is not warranted. While the Court appreciates the frustration expressed by counsel for the
Defendants that Plaintiffs were only able to obtain this document because they downloaded
documents that were clearly not meant to be placed in their possession at the time, the
Court finds that ultimately, as the document in question is not subject to any privilege, the
same should be disclosed to Plaintiffs, and possibly should have been disclosed as part of
Defendants’ responses to earlier discovery requests. 6 As a non-privileged document that is
relevant to the parties’ claims and defenses, or may lead to the discovery of admissible
evidence, the document should be produced to the Plaintiffs. See Fed. R. Civ. Pro. 26(b)(1).
III.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Reconsideration (Doc. 188) is
granted. Document #10 should be produced to all parties in this case, in its entirety, within
5
Federal Rule of Evidence 502(b) provides that, in a federal proceeding,
unintentional disclosure of privileged materials does not result in waiver of that privilege if
“(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took
reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to
rectify the error.” Fed.R.Evid. 502(b). Adopting a case-by-case approach, courts within the
Third Circuit consider the following factors in determining whether an inadvertent
disclosure constitutes waiver: (1) the reasonableness of the precautions taken to prevent
inadvertent disclosure in view of the extent of the document production; (2) the number of
inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to
rectify the disclosure; and (5) whether the overriding interests of justice would or would not
be serviced by relieving the party of its errors. Alers v. City of Philadelphia, No. 08–4745, 2011
WL 6000602, at *2 (E.D.Pa. Nov. 29, 2011).
6
Nothing in this Court’s opinion, however, should be construed as a finding on the
merits of any motion for sanctions that may be filed by any of the parties related to the
disclosure, and subsequent inclusion of the document in question with the instant motion.
6
ten (10) days of the Order accompanying this Memorandum.
An appropriate Order follows.
s/ Karoline Mehalchick
Dated: November 25, 2014
KAROLINE MEHALCHICK
United States Magistrate Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?