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ESPOSITO v. GALLI

February 4, 2005.

JOSEPH ESPOSITO and JOHN J. PETRUCCI, JR., Plaintiffs
v.
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.

PROCEDURAL HISTORY:

  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 Page 2 pending Motion.

  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 Page 3 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 disposition.

  FACTUAL BACKGROUND:

  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. Page 4

  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.

  DISCUSSION:

  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 ...


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