The opinion of the court was delivered by: JOHN E. JONES, District Judge
Pending before the Court is a Motion to Quash a Subpoena and
for a Protective Order ("the Motion") (doc. 35), filed by the
defendants Daniel Mimnaugh ("Mimnaugh") and David J. Swartz
("Swartz") (together, "Defendants") on October 25, 2004. For the
reasons that follow, the Motion shall be granted in part and
denied in part.
The procedural chronology of this case has been set forth in
the Court's September 27, 2004 Order and is well known to the
parties. The following brief recitation of that history is
sufficient for purposes of the Court's review of the
The plaintiffs, Joseph Esposito ("Esposito") and John J.
Petrucci, Jr. ("Petrucci") (together, "Plaintiffs") initiated
this action by filing a complaint pursuant to 42 U.S.C. § 1983 in
the United States District Court for the Middle District of
Pennsylvania on March 5, 2004. In addition to Mimnaugh and
Swartz, Plaintiffs' Complaint names Leonard Galli ("Galli") as a
defendant. Galli is not, however, a party to the pending Motion.
In a memorandum dated March 31, 2004, Chief Counsel Barbara L.
Christie requested an investigation by the Pennsylvania State
Police's ("PSP") Bureau of Integrity and Professional Standards
("BIPS") of the factual circumstances cited in the complaint for
the purpose of "developing legal theories that can be advanced in
defense of said claim and to make a proper evaluation as to any
liability to which the Department may be exposed with respect to
this claim." (See Rec. Doc. 47, Ex. PSP-1). Upon completion of
the investigation, counsel for Plaintiffs issued a subpoena on
the PSP through which they requested the production of the BIPS
investigation. PSP objected by letter to the production of this
material pursuant to the attorney work product doctrine.
After an unsuccessful attempt to resolve PSP's objections via
an October 15, 2004 telephonic conference with the Court,
Defendants filed the instant Motion to
Quash the Subpoena and for a Protective Order to shield the BIPS
report on October 25, 2004. On February 2, 2005, a hearing was
held on Defendants' Motion during which we ordered an in camera
inspection of the BIPS Report Number IAD-2004-0256. The Motion
has been briefed by the parties and is therefore ripe for
The factual details of this case have been set forth in their
entirety in prior orders, and accordingly we will restate them
only in an abbreviated form. After a public meeting and official
vote, the Exeter borough council ("Borough") lent one of its
employees money to pay off an unpaid judgment and the loan was
paid off on January 29, 2002. (See Compl. at ¶¶ 10-13).
In early 2002, Galli, a police officer for the Borough who had
an unquestioned distaste for Plaintiffs, approached his
co-defendants, who are Pennsylvania State Troopers, and pressured
them into charging Plaintiffs with crimes related to the loan to
the Borough employee. See id. at ¶¶ 16-17. On April 2, 2002,
Mimnaugh, as affiant, charged Plaintiffs with Misapplication of
Entrusted Property and Property of Government of Financial
Institutions, a violation of 18 Pa.C.S. § 4113(a), and with
Criminal Conspiracy, a violation of 18 Pa.C.S. § 903(a)(1). See
id. at ¶ 18.
A preliminary hearing on the cases was held before Judge
William Amesbury on May 23, 2002. Id. at ¶ 19. The charges
against Plaintiffs were dismissed for failure to prove a prima
facie case. Id. at ¶ 19.
Defendants assert that BIPS Report Number IAD-2004-0256 ("BIPS
2004-0256") constitutes attorney work product and that none of
the exceptions to the attorney work product doctrine are
applicable to the case sub judice. Defendants accordingly
request that we issue an order quashing the subpoena issued upon
the PSP by Plaintiffs dated September 30, 2004, and that we issue
a protective order to shield production of the documentation
contained in the BIPS 2004-0256. (See Defs.' Rep. Br. Supp.
Mot. Quash Sub. at 5).
In response, Plaintiffs argue that Defendants in the instant
lawsuit are three individuals, two of whom are employed by the
PSP, as opposed to the PSP or the Commissioner. As neither the
PSP nor the Commissioner are parties to this case and as the PSP
is the mere employer of a party, Defendants are not entitled to
invoke the work product exclusion and to withhold the BIPS
2004-0256. (See Pls.' Br. Opp. Defs.' Mot. Quash Sub. at 3-6).
Moreover, Plaintiffs maintain that the documents at ...