IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
May 15, 2009
LEE, ET AL., PLAINTIFF,
DEVELOPERS DIVERSIFIED REALTY CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Donetta W. Ambrose Chief U.S. District Judge
AMBROSE, Chief District Judge
MEMORANDUM ORDER OF COURT
On May 1, 2009, Plaintiffs, Brian Lee, Sr. and Belinda Lee, Co-Administrators of the Estate of Brian Lee, Jr., Deceased, filed a Motion to Enforce Non-Party Subpoena Directed to Allegheny County Police, Homicide Division ("Allegheny County"). (Docket No. 15). In the subpoena, Plaintiffs seek the production of the investigative materials pertaining to the shooting death of Plaintiffs' decedent on July 13, 2008. After speaking with an Assistant County Solicitor, Plaintiffs' counsel agreed to limit the documents requested by the subpoena to witness statements/notes of witness interviews and that the documents would be subject to a confidentiality agreement. (Docket No. 15, ¶8). Allegheny County, however, would not agree to produce the documents. Plaintiffs additionally agree that any confidential informant or confidential witness information should be withheld by Allegheny County. (Docket No. 15, ¶12).
In response, Allegheny County raises the governmental / executive / investigative / law enforcement privilege. "When a request for relevant documents or information is made, a claim of privilege should be interposed judiciously and not casually." U. S. v. O'Neill , 619 F.2d 222, 225 (3d Cir. 1980). As a threshold requirement, "to support a claim of executive privilege at least three requirements must be satisfied. The head of the agency claiming the privilege must personally review the material, there must be 'a specific designation and description of the documents' claimed to be privileged," and there must be "precise and certain reasons for preserving" the confidentiality of the communications. Usually such claims must be raised by affidavit." Id. at 226, citing, Smith v. Federal Trade Commission, 403 F.Supp. 1000, 1016 (D. Del.1975); Van Hine v. Dept. of State of the Commonwealth of Pa., 856 A.2d 204, 208 (Pa. Commwlth. 2004). Thus, an assertion by an attorney is not enough. Id.; U.S. v. Reynolds, 345 U.S. 1, 7-8 (1953); Crawford Dominic, 469 F.Supp. 260, 263 (D.C. Pa. 1979).
In this case, Allegheny County does not event attempt to address this threshold requirement. See, Docket Nos. 19-20. Without the same, I am unable to engage in the balancing test set forth in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973), overruled on other grounds, Startzell v. City of Philadelphia, No. 05-5287, 2006 WL 2945226, 4 (E.D. Pa. Oct 13, 2006).*fn1 As a result, I will accord Allegheny County the opportunity to address this threshold requirement and more fully develop the balancing factors. In so doing, Allegheny County must comply with the requirements set forth above and must also produce the documents at issue to the Court for an in camera inspection. Allegheny County must do so by May 27, 2009. Plaintiffs are permitted to respond to the same by June 3, 2009. At that time, I will decide whether the documents should be discovered, discovered in a modified form, or wholly protected from disclosure.