The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
This matter is before the Court on the following motions: (1) Motion to Compel Bruce Dixon M.D. to Answer Questions at Deposition Upon Oral Examination ; (2) Motion to Compel Michael Patterson Sr., M.D. to Answer Questions at Deposition Upon Oral Examination; and (3) Motion to Compel Lucille Aiken, M.D. to Answer Questions at Deposition Upon Oral Examination , all filed by Plaintiffs Ella Mae Howard on behalf of Valeria Whetsell, Edward Sartori, and Dianne Sartori ("Plaintiffs").*fn1 On April 14, 2008, Defendant Ramon C. Rustin, Allegheny County, Dan Onorato, and John and James Doe filed their Response to Plaintiffs' Motions to Compel by Defendants' Rustin Onorato, John Doe, James Doe, and Allegheny County (Docket No. 90), in which they assert said disputes concern questions directed to individuals represented by separate counsel and hence they decline to substantively respond, except to assert that said motions are "inappropriate and should be denied." On April 18, 2008, Defendants Allegheny Correctional Health Services, Inc., Bruce Dixon, and Dana Phillips ("Allegheny Health Defendants") filed their respective responses to Plaintiffs' motions. (See Docket Nos. 102, 103, & 105).
By way of brief background, Plaintiffs brought this action against all Defendants for wrongful death based on negligence and various civil rights violations, including, inter alia,§§ 1983, 1985, 1986 of Title 18 of the United States Code as well as the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that the decedents Valeria Whetsell and Amy Lynn Sartori were inmates at the Allegheny County jail who contracted methicillin-resistant staphylcoccus aureus ("MRSA") due to substandard medical care at the Allegheny County jail. Whetsell and Sartori died on March 21, 2005 and March 20, 2005, respectively. The Court will address each motion to compel in turn.
I. Motion to Compel as to Bruce Dixon, M.D.
On December 10, 2007, Plaintiffs' counsel deposed Defendant Bruce Dixon, the Chairman of the Board of Directors of Allegheny Correctional Health Services.*fn2 Counsel for the Plaintiffs seek an order from the Court compelling Defendant Dixon to re-appear for a deposition and answer questions regarding (1) whether he made a request to the Allegheny County legal department as to the release of information about infectious diseases; and (2) whether if Defendant Dana Phillips made a medical decision regarding inmates, the same would violate Allegheny County Health Services' policies and procedures. (Docket No. 86). Counsel for Allegheny Health Defendants objected asserting attorney-client privilege and an improper hypothetical question, respectively.
1. Attorney-Client Privilege
At the deposition, Plaintiffs' counsel asked Defendant Dixon whether, at any time prior to 2005, he had made any request of the Allegheny County legal department to determine whether he could release information about infectious diseases to guards and/or inmates at the Allegheny County jail according to the parameters of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Counsel for Allegheny Health Defendants objected and instructed the witness not to answer the question based on attorney-client privilege. After counsel clarified the question to be only seeking an answer as to whether Defendant Dixon, in fact, made a request to the Allegheny County legal department, counsel for Allegheny Health Defendants again objected and instructed Dixon not to answer any questions related to his dealings with the Allegheny County legal department because the same posed a hypothetical question.
Before turning to the substance of the Allegheny Health Defendants' argument, as this Court has federal question jurisdiction over the instant matter, the Court will look to federal law. See Fed.R.Evid. 501 cmt. ("In nondiversity jurisdiction civil cases, federal privilege law will generally apply"). "Nonetheless, the Third Circuit and the state of Pennsylvania apply the same test in evaluating attorney-client privilege." Rhone-Poulenc Rorer v. Home Indem. Co., 32 F.3d 851, 861 (3d Cir. 1994) ("No one has argued, however, that there are any principles or rules of law as to the attorney client privilege unique to Pennsylvania that should control the resolution of our decision on these matters"); see also Gilliland v. Geramita, No. 2:05-CV-01059, 2006 WL 2642525, at *2 n.2 (W.D. Pa. Sept. 14, 2006) (noting the lack of differences between Pennsylvania law and federal common law as to the attorney-client privilege). Thus, the Court will also look to Pennsylvania law for guidance.*fn3
The elements of the attorney client privilege under federal law are:
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979)(quoting United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D. Mass. 1950)).*fn4 The burden of proving that information is protected by attorney-client privilege is on the party asserting the privilege. Teltron, Inc. v. Alexander, 132 F.R.D. 394 (E.D. Pa. 1994).
While Defendant argues that the question posed to Dr. Dixon directly addresses a privileged communication between an agent of the county and the county legal department, courts have held that where the question at issue only seeks whether a communication actually occurred and not to the substance of the communication, the attorney-client privilege does not apply. Constand, 232 F.R.D. at 503. In particular, the Court noted the following:
[T]he fact of whether the lawyers' gave plaintiff legal advice is not protected by the attorney client privilege and must be disclosed. Rhone- Poulenc, 32 F.3d at 862. 'Did any of these lawyers whom you talked to give you any advice?' merely requests a fact and would not reveal any client confidences in violation of the privilege. Therefore, plaintiff is required to answer question 3 of defendant's motion to compel because the fact of advice is discoverable. In the event plaintiff was provided advice by the lawyers, the ...