LUCA v. WYNDHAM WORLDWIDE CORPORATION et al

Filing 161

REDACTED MEMORANDUM OPINION. Signed by Chief Judge Mark R. Hornak on 2/11/19. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THOMAS LUCA, JR.,
Plaintiff,

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V.

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2: l 6-cv-007 46

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WYNDHAM WORLDWIDE
CORPORATION ET AL,
Defendants.

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REDACTED MEMORANDUM OPINION

Mark R. Hornak, Chief United States District Judge.
Pending before the Court is Plaintiff Thomas Luca's ("Plaintiff') Motion Contesting
Defendants' Assertion of Attorney-Client Privilege/Work-Product Protection (ECF No. 109). 1
Defendants Wyndham Hotel Group, LLC, and Wyndham Hotels and Resorts, LLC, (collectively,
·'Defendants") seek the return of l 08 purportedly privileged documents composing an E-mail
chain among Defendants' employees involving
that were inadvertently disclosed to Plaintiff during discovery. 2 Defendants assert that

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these documents are shielded from discovery under the attorney-client privilege and the workproduct doctrine. Plaintiff contests the application of any privilege to such documents and seeks
an Order from this Court permitting Plaintiff to retain and use the contested documents in
connection with this litigation. (ECF No. I 09-1.) For the reasons that follow, Plaintiff's Motion
is denied.
1

The matter has been fully briefed, and the Court held a telephonic oral argument. (ECF Nos.

110,112,118,119,120,121, 126-30, 144.)
2

For factual background on this case, see this Court's Opinion dated January l 6, 2019 (ECF No.

147.)

"Though they both operate to protect information from discovery, the work-product
doctrine and the attorney-client privilege serve different purposes." In re Chevron Corp., 633
F.3d 153, 164 (3d Cir. 2011 ). "The attorney-client privilege protects from disclosure confidential
communications made between attorneys and clients for the purpose of obtaining or providing
legal assistance to the client." In re Grand Jury, 705 F.3d 133, 151 (3d Cir. 2012). The workproduct doctrine "protects from discovery materials prepared or collected by an attorney 'in the
course of preparation for possible litigation."' Id. (quoting In re Grand Jury Investigation, 599
F.2d 1224, 1228 (3d Cir. 1979)). The burden on establishing either privilege rests with the party
seeking its protection. FTC v. Innovative Designs, Inc., 16-cv-1669, 2017 U.S. Dist. LEXIS
162222, at *6-8 (W.D. Pa. Sep. 28, 2017). In evaluating whether a document is protected by the
work-product doctrine, the court conducts a two-part inquiry: (1) whether litigation could
reasonably have been anticipated, and (2) whether the documents were prepared primarily for the
purpose of litigation. See United States v. Rockwell Int 'l, 897 F.2d 1255, 1265-66 (3d Cir. 1990);

Crawford v. Corizon Health, Inc., No. 17-cv-113, 2018 U.S. Dist. LEXIS 113828, at *8 (W.D.
Pa. July 10, 2018).
Plaintiff asserts that the work-product doctrine cannot apply because the documents at
issue were generated in the ordinary course of business. 3 See Rockwell, 897 F.2d at 1265-66
("Federal Rule of Civil Procedure 26(b)(3) makes clear, however, the necessity that the materials
be prepared in anticipation of litigation, and not 'in the ordinary course of business, or pursuant
to public requirements unrelated to litigation."' (quoting United States v. El Paso Co., 682 F.2d
530, 534 (5th Cir. 1982))). Defendants dispute this, maintaining that all of the I 08 documents in
3

Although Plaintiff includes "Attorney-Client Privilege" in the title of his Motion, his brief in
support of that Motion only addresses the work-product doctrine. Because the Court is able to
resolve the Motion on that basis, it will not address the applicability of the attorney-client
privilege to the documents at issue here.

2

question "were generated at the direction of counsel for the purpose of providing legal advice to
the company." (ECF No. 120.)
Defendants attached to their brief in opposition to the pending Motion a declaration of the
Chief Commercial Officer of Wyndham Hotels & Resorts, Inc., Barry Goldstein, who declared

that he reviewed all the documents at issue in this dispute and confirmed that each document
reflected work performed at the direction of in-house or outside counsel for the purposes of
providing legal advice to the company. (ECF No. 121-1.) Specifically, Mr. Goldstein's
Declaration explains that the E-mail thread arose out of a request from Defendants' counsel to
and shared confidentially with counsel

for the purpose of providing legal advice to the company,
(Id

1 6.)

Plaintiff does not dispute or challenge the veracity of Mr. Goldstein's Declaration. Rather,
Plaintiff argues that the documents, on their face, show that their purpose is primarily business•
related.
The documents themselves do not demonstrate on their face that they relate to legal
strategy, but the documents also do not. as Plaintiff contends, "make clear that the primary
purpose ... was for business purposes." (ECF No. 112, at l.) Cf Crawford, 2018 U.S. Dist.
LEXIS 113828, at

•s (documents created for other purpose but useful in subsequent litigation

are not protected by work-product doctrine). The documents simply show the subject_
at issue. Mr. Goldstein's Declaration fills in
the missing component, i.e. the primary purpose for which these documents were created.
Plaintiff's argument that the documents were created primarily for business reasons is unavailing
in light of the content of the Declaration.

3

The absence of an attorney in the E-mail thread is not fatal to the application of the workproduct doctrine. Attorneys may rely on the assistance of others in gathering materials, or, as is
the case here, in

. See Goldenberg v. fndel, Inc., No. 09-cv-5202,

2012 U.S. Dist. LEXIS 199516, at * 11-12 (D.N.J. May 31, 20 I 2) ("While the emails in question
do not need to have been created by an attorney to receive protection of the work-product
doctrine, the Defendants have demonstrated that the emails were created by or at the direction of
Mr. Krupnick in his capacity as an attorney.").
Plaintiff's inability to undermine the veracity or applicability of Mr. Goldstein's
Declaration leaves the Court with the conclusion that the documents in question do in fact reflect
work that was performed at the direction of counsel for the purposes of providing legal advice in
anticipation of litigation. As such, Defendants have met their burden to show that the documents
are protected under the work-product doctrine. Plaintiff's Motion, ECF No. I09, is denied.
An appropriate Order will issue.

Mark R. Hornak
Chief United States District Judge
cc: All counsel of record
Decision Dated: January 16, 20 I 9
Redaction Filed: February~. 2019

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