The opinion of the court was delivered by: Judge Gary L. Lancaster
Magistrate Judge Amy Reynolds Hay
In this civil rights action*fn1 brought pursuant to 42 U.S.C. § 1983, the Court considers the Defendants' Motion for Protective Order (Doc.105 ). Asserting attorney-client and work product privileges, the Defendants seek to preclude the Plaintiff's use of five letters prepared by the former North Franklin Township Solicitor in connection with a separate 2006 legal proceeding involving Kavakich.*fn2 The Court also addresses a Motion to Withhold Decision filed by the Plaintiff (Doc. 117) asking the Court to delay considering the Defendants' Motion until he is able to conduct discovery limited to issues bearing on waiver of the asserted privileges. Whether documents are subject to privilege is committed to the District Court's discretion. Rossi v. Standard Roofing, Inc., 156 F.3d 452, 477 n.16 (3d Cir.1998).
Having carefully considered the parties' arguments, the Court will deny the Defendants' Motion for Protective Order, as they have failed to establish non-waiver of the attorney client privilege. In addition, the facts demonstrate that the work product privilege should be deemed to have been waived. The Court will, therefore, deny the Plaintiff's Motion as moot.
As expressed in Fed. R. Evid. 501, the attorney-client privilege is grounded in the common law.*fn3 See Upjohn Co. v. United States., 449 U.S. 383, 389 (1981). The privilege applies where:
(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 or her 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 of law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir.1994).
The privilege belongs to the client, which may be a government entity. See In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007). "[B]ecause its benefits are, at best 'indirect and speculative,' [the privilege] must be 'strictly confined within the narrowest possible limits consistent with the logic of its principle.'" In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 802 (3d Cir. 1979) (internal citation omitted.).
"In order to establish the applicability of the attorney-client privilege to a given communication, the party asserting the privilege must affirmatively demonstrate non-waiver." United States. v. Zolin, 809 F.2d 1411, 1415 (9th Cir. 1987), overruled on other grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997); see also United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982) (citing United States v. Bump, 605 F.2d 548, 551 (10th Cir.1979)); United States v. Stern, 511 F.2d 1364, 1367 (2d Cir.1975); In re Horowitz, 482 F.2d 72, 81-82 (2d Cir.1973); Kraus Indus, Inc. v. Moore, Civ. No. 06-542, 2008 WL 4206059 at *4 (W.D. Pa. Feb. 11, 2008); In re Nat'l Med. Imaging, L.L.C., No. 05-12714, 2005 WL 3299712 at *3 (Bankr. E.D. Pa. Oct. 31, 2005).
In an attempt to negate waiver, the Defendants have filed an affidavit executed by Makel in which he avers that he did not give the letters to Kavakich, and did not authorize any one else to release them. (Doc. 115 at 2). He also states that the Board of Supervisors never authorized disclosure of the documents on behalf of the Township. This affidavit - the only evidence offered by the Defendants with respect to waiver - says nothing about what Township officials may have disclosed, and does not provide a basis for Makel's conclusory statement about what these Defendants were authorized to disclose. Especially considering Kavakich's own affidavit, the Defendants have not eliminated the possibility that disclosure by one or more Commissioners amounted to express or implied waiver of the attorney-client privilege.
The Defendants' failure to establish non-waiver is compounded by their failure to treat the letters as though they were privileged. This failure alone is sufficient to defeat both privileges.*fn4 The Defendants do not offer any reasonable explanation for their failure to assert privilege when they realized, months before the Motion for Protective Order was filed on October 29, 2008, that the letters were in Kavakich's possession. Kavakich notified the Defendants in April 2008 that he had two of these letters when he listed them in his Rule 26(a) disclosure. The Defendants do not allege that they did anything in response to this disclosure to ensure the confidentiality of these letters or to prevent Kavakich from accessing additional "privileged" documents. Defendants were aware, at least from August 14, 2008, the date Kavakich was deposed in a state case,*fn5 that he had access to all five letters. At the deposition, Attorney David R. Johnson, who also represents the Defendants in this matter, questioned Kavakich regarding how he obtained the letters. After Kavakich testified that he received them from Quinn and/or Makel, Johnson asked that the letters be marked as deposition exhibits. (See Doc. 110-2). At no time during the deposition did Johnson assert that these letters were confidential or subject to privilege.
The Defendants argue that an assertion of privilege was unnecessary given that Kavakich produced the letters at his own deposition. They contend that because Kavakich already had the letters, nothing that took place at the deposition can fairly be characterized as disclosure. Therefore, they say, the Defendants did nothing to compromise their right to assert later that the letters are privileged. The Court does not, however, rest its ruling on disclosure. Instead, the Court's waiver analysis is rooted in the fact that even when they learned that Kavakich had two of the letters, the Defendants ...