United States District Court, M.D. Pennsylvania
February 4, 2005.
JOSEPH ESPOSITO and JOHN J. PETRUCCI, JR., Plaintiffs
LEONARD GALLI, DANIEL MIMNAUGH and DAVID J. SWARTZ, Defendants.
The opinion of the court was delivered by: JOHN E. JONES, District Judge
MEMORANDUM AND ORDER
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 issue were
neither prepared by any party's attorney, nor prepared at the
direction of any party or any party's attorney.
Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 26(b)(3),
captioned "Trial Preparation: Materials," provides that:
Subject to the provisions of subdivision (b)(4) of
this rule, a party may obtain discovery of documents
and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in
anticipation of litigation or for trial by or for
another party or by or for that party's
representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent)
only upon a showing that the party seeking discovery
has substantial need of the materials in the
preparation of the party's case and the party is
unable without undue hardship to obtain the
substantial equivalent of the materials by other
means. In ordering discovery of such materials when
the required showing has been made, the court shall
protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an
attorney or other representative of a party
concerning the litigation.
The Supreme Court, in Hickman v. Taylor, 329 U.S. 495
recognized that the work-product doctrine "protects from
discovery materials prepared or collected by an attorney `in the
course of preparation for possible litigation.'" In re Grand
Jury Investigation, 599 F.2d 1224
, 1228 (3d Cir. 1979)
(quoting Hickman, 329 U.S. at 505). The Third Circuit Court
of Appeals has instructed that the burden of demonstrating that a
document is protected as work-product rests with the party
asserting the doctrine. Conoco, Inc. v. United States DOJ,
687 F.2d 724
, 730 (3d Cir. 1982).
After a thorough in camera inspection of the BIPS 2004-0256,
we find that it generally falls within the ambit of attorney work
product protection and is
therefore not discoverable for the reasons that follow. We do
find however that two letters therein are fully discoverable, one
written to Trooper Mimnaugh and the other written to Trooper
Swartz from Captain Ronald P. Petyak on August 23, 2004,
indicating that the action taken was justified and that no
disciplinary action is anticipated regarding either of the
Defendants. The remainder of the BIPS 2004-0256 consists of
material which can be obtained by Plaintiffs via diligent
investigation, or is quite likely already in Plaintiffs'
possession and control, except for a four page "General
Investigation Report" contained within the larger submission.
Accordingly, we view the dispute between the parties as one which
in the main concerns this four page document and the potential
application of the attorney work product doctrine thereto, which
we will now address in detail.
Although Plaintiffs assert that the attorney work product
doctrine is inapplicable to the BIPS 2004-0256 as neither the PSP
nor the Commissioner are parties to the instant lawsuit,
Defendants counter by maintaining that although counsel from the
Office of Attorney General ("OAG") entered her appearance as
counsel of record for Defendants, that the PSP Chief Counsel also
represents Defendants inasmuch as that office represents all PSP
officers in matters of this type. Although Plaintiffs would have
us believe that the PSP is a detached third party, the evidence
reflects that the OAG and PSP counsel are working in concert
in this matter and do so in other similar matters in which
members of the PSP are sued in their official capacities. In the
hearing before the Court on February 2, 2005 concerning the
instant Motion, PSP's Chief Counsel, Barbara L. Christie ("Chief
Counsel Christie") testified extensively on the steps taken after
a civil lawsuit is filed against a member of the PSP, as well as
regarding the relationship between the PSP and OAG.
In this case, Chief Counsel Christie testified that the PSP
received notice of a complaint which was filed on March 5, 2004
against Defendants. By a memorandum dated March 31, 2004 and
addressed to Major Skurkis, Chief Counsel Christie requested an
investigation by the PSP 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). Chief Counsel Christie further explained that this
information is being "requested in anticipation of litigation and
is considered to be `attorney work product.' Consequently, this
information should not be released to any individual outside the
Pennsylvania State Police with the exception of any Commonwealth
attorney who is representing the Department in the defense of
claims relating to the above-referenced matters." Id. at ¶ 2.
Chief Counsel Christie
testified that the above-referenced investigation is conducted
after a civil action is filed for the purpose of defending
against the action and to determine whether the individuals
against whom the complaint was filed will be represented and
indemnified by the Commonwealth.
There are specific procedures that must be taken and followed
when legal action is instituted against departmental personnel
with the PSP. (See Rec. Doc. 47, PSP-4, PSP-5). When an action
is commenced against state actors as a result of conduct which
occurs within the scope of their official duties, 42 Pa.C.S. §
8525 requires the Commonwealth to provide representation in
defense of that action.*fn1 In addition, Chief Counsel
Christie testified that after it is determined that the defendant
members of the PSP were acting within the scope of their
employment at the time of the alleged incident at issue, as has
occurred in this case, the OAG undertakes representation of the
defendants and Chief Counsel Christie assigns a liaison attorney
to work directly with the OAG. Moreover, as Defendants point out,
when state actors are Pennsylvania State Police Troopers
("PSPT"), Article 27,
§ 3 of the PSP/Pennsylvania State Trooper Association Collective
Bargaining Agreement requires the Commonwealth to indemnify the
Troopers from any judgment that might be rendered against them.
Thus it is notable that despite not being a named defendant in
the instant case, the PSP has monetary exposure in the event of
an adverse verdict, and possesses the ultimate authority with
respect to authorizing any proposed settlement.
During her cross-examination testimony, Chief Counsel Christie
acknowledged that neither the PSP nor the Commonwealth are named
defendants in the instant lawsuit, and that neither Defendant
Mimnaugh nor Defendant Swartz directed the "attorney work
product" investigation to be conducted. As a result, a strict
interpretation by us of Fed.R.Civ.P. 26(b)(3) could lead to the
conclusion that the entire BIPS 2004-0256 is discoverable, as it
was technically not prepared in anticipation of litigation by or
for another "party" or by or for that other "party's"
representative. This interpretation would however ignore the
salient facts essential to our analysis, including that the PSP
is at least a de facto party in interest, if not an actual
named party. Moreover, the BIPS investigation at issue was
prepared by a member of the PSP, at the direction of Chief
Counsel Christie, after service of the complaint and with the
objective being to defend against the present action. While a
BIPS investigation may have multiple purposes, unquestionably its
here was in aid of litigation the PSP knew had already been
initiated against two of its troopers. Plaintiffs seek to have us
elevate form over substance, but we decline to do so. The PSP is
not a disinterested third party to this action. Rather, it is
accepted protocol that, as noted, the OAG and the PSP's Chief
Counsel work collaboratively in defending actions against a PSP
trooper who has been sued in his or her official capacity. If we
were to determine that reports such as the one at issue are
discoverable as a matter of course, then clearly the PSP's
efforts to conduct an investigation into the merits of complaints
filed against members of the PSP in aid of defending these
actions would be chilled.
Based upon the reasons stated herein and after a careful in
camera inspection of the BIPS 2004-0256, we hold that it
generally falls within the ambit of attorney work product
protection and is therefore not discoverable. As noted, we will
except from this ruling the two letters written on August 23,
2004 to both Trooper Mimnaugh and Trooper Swartz from Captain
Ronald P. Petyak, indicating that the actions taken were
justified and that no disciplinary action was anticipated. These
are fully discoverable and shall be produced to Plaintiffs.
We do note that as Defendants point out, the United States
District Court for the Eastern District of Pennsylvania recently
considered the application of the attorney work product doctrine
to a dispute involving the production of discovery
materials. The court in U.S. ex rel. Hunt v. Merck-Medco Managed
Care, LLC, 2004 WL 1950318 (E.D. Pa. Aug. 31, 2004), stated that
"Rule 26(b)(3) establishes two tiers of protection: first, work
product prepared in anticipation of litigation by an attorney or
his agent is discoverable only upon a showing of need and
hardship; second, `core' or `opinion' work product that
encompasses `mental impressions, conclusions, opinion, or legal
theories of an attorney or other representative of a party
concerning the litigation' is `generally afforded near absolute
protection from discovery.'" In re Cendant Crop. Sec.
Litigation, 343 F.3d 658, 663 (3d Cir. 2003) (quoting In re
Ford Motor Co., 110 F.3d 954, 962 n. 7 (3d Cir. 1997)). "If
litigation is not imminent, or if the materials at issue were
prepared in the ordinary course of business, they are generally
not protected by either the attorney client privilege or the Work
Product Doctrine." U.S. ex rel. Hunt, 2004 WL 1950318 at *1;
see also Schmidt, Long & Assoc., Inc. v. Aetna U.S.
Healthcare, Inc., 2001 WL 605199 (E.D. Pa. May 31, 2001).
Accordingly, the three exceptions to the attorney work product
doctrine are the following: (1) materials prepared prior to
litigation becoming imminent; (2) materials prepared during the
ordinary course of business; and (3) when a showing of
substantial need or hardship by the party seeking the material is
At the hearing Plaintiffs' counsel indicated with commendable
he will not make an argument asserting that there is substantial
need for the BIPS 2004-0256 or that hardship will result from its
nondiscoverability at this time, as he has not yet deposed
Defendants. The Court explained on the record that Plaintiffs'
counsel may reserve the right to argue hardship or substantial
need pursuant to Fed.R.Civ.P. 26(b)(3) after completing
depositions in this case. Plaintiffs' counsel may consequently
renew his request to discover the BIPS 2004-0256 if it becomes
necessary after his completion of additional discovery.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Defendants' Motion to Quash the Subpoena and for a
Protective Order (doc. 35) is denied in part and
granted in part.
A. Defendants' Motion is denied to the extent that
two letters written on August 23, 2004, one written
to Trooper Mimnaugh and the other written to Trooper
Swartz from Captain Ronald P. Petyak are fully
discoverable and shall be produced to Plaintiffs.
B. Defendants' Motion is granted to the extent that
the remainder of the BIPS 2004-0256 constitutes
attorney work product and is therefore not
2. Plaintiffs' counsel may renew his request to
discover the BIPS 2004-0256 under Fed.R.Civ.P.
26(b)(3) as it relates to substantial need and
hardship if it becomes necessary after his completion
of additional discovery.