The opinion of the court was delivered by: Cathy Bissoon United States Magistrate Judge
For the reasons that follow, Plaintiff‟s Motion (see Doc. 50) to prohibit Defendants‟ use of alleged "anonymous source" documents will be granted, Plaintiff‟s Motion (see id.) to disqualify Defense counsel will be denied, and Defendants‟ Motion to Compel (Doc. 62) will be denied, consistent with the instructions herein.
As referenced in an Order dated January 13, 2010 (Doc. 67), the current Motions relate to two sets of Plaintiff‟s documents, received by Defendants from purportedly "anonymous" sources in September and October, 2009. See id. at 1 (referring to documents as "the September Documents" and "the October Documents," respectively). The September Documents have been reviewed by Defense counsel and filed with the Court under seal (see Doc. 60); the October Documents, which have not been reviewed by Defense counsel, are being held by an Escrow Agent pursuant to the Court‟s January 13th Order. See id. at 2-3.
There is no record evidence regarding how Defendants came into possession of the September and October Documents. Rather, the Court is left with the unsworn statements of Defense counsel in their legal briefs.
As to the September Documents, Defense counsel states that "Defendants obtained these documents from an anonymous source," "in an un-labeled large manila envelope" left outside Defendants‟ rented office space in Dubai, UAE. See Defs.‟ Opp‟n Br. (Doc. 64) at 2-4; Defs.‟ Br. (Doc. 63) at 5. The documents allegedly were retrieved by the sister-in-law of one of the Defendants, unspecified, who "was collecting [Defendants‟] mail at their former leased office space and forwarding the mail to the [unspecified Defendant] at his new residence in Amman, Jordan." See Defs.‟ Br. at 5 & n.1; see also generally id. (prior to September, 2009, all Defendants fled Dubai "due to concerns over their safety").
The details regarding the October Documents are even sketchier. Defense counsel states that "[t]he second package of anonymous source documents [was] delivered [in October, 2009,] in another large envelope left at the personal residence of Defendant . . . Haydar Hassan in Amman, Jordan." See Defs.‟ Mot. (Doc. 66) at ¶ 7. While the parties are in agreement that the materials most likely came from one of Plaintiff‟s current or former employees,*fn1 there are no indications regarding: whether the October Documents were hand-delivered to Defendant Hassan‟s personal residence in Jordan, or mailed; if the documents were mailed, whether the envelope contained shipping information that may be utilized to determine the identity of the source or to otherwise track the mailing; if the documents were hand-delivered, how or why the "anonymous" source presumably traveled over 1200 miles from Dubai, U.A.E. to Amman, Jordan to make the delivery; and, in any event, how the alleged anonymous source was aware of Defendant Hassan‟s personal address. Cf. Order dated Dec. 4, 2009 (Doc. 40) at 7 (noting Defendants‟ attempted invocation of Fifth Amendment privilege against self-incrimination in response to interrogatory seeking "all addresses at which [Defendants] have resided . . . since May 14, 2009").
At least with respect to the October Documents, Defendants‟ claimed lack of knowledge regarding, or involvement with, the purported "anonymous source" delivery appears highly suspicious. The Court also finds telling Defense counsel‟s failure to provide more specific information, let alone evidence in the form of sworn affidavits, regarding Defendants‟ receipt of the September and October Documents.
Defense counsel‟s heretofore unsubstantiated statements regarding "anonymous source" documents, and Plaintiff‟s questioning thereof, practically beg for the commencement of evidentiary proceedings. Compare discussion supra with, e.g., Maldonado v. New Jersey, 225 F.R.D. 120, 125-27 (D. N.J. 2004) (discussing facts presented at hearing regarding plaintiff‟s discovery of confidential letter drafted by defendant, that "[somehow] allegedly ended up in [plaintiff‟s] workplace mailbox"). Indeed, were the Court to be convinced that Defendants conspired with others to obtain the September and/or October Documents, Defendants could well be the subject of severe sanctions for perpetrating a fraud on the court. See, e.g., Perna v. Elec. Data Sys., Corp., 916 F. Supp. 388, 392-403 (D. N.J. 1995) (dismissing plaintiff‟s claims upon finding that he surreptitiously obtained confidential documents from defense counsel‟s briefcase and provided copies to his counsel).
Plaintiff has not requested a hearing, however, and holding one would seem contrary to Plaintiff‟s goal of expeditiously adjudicating its pending Motion for a Preliminary Injunction. Defendants also would seem less than eager to participate, given their prior objections to appearing in Pennsylvania for depositions. See generally Defs.‟ Doc. 27 at 6 (requiring Defendants to travel to Pittsburgh would "result in a significant, lengthy, and costly disruption to their business, not to mention the expenditure of tens of thousands of dollars in travel costs").*fn2
These things being said, the Court believes that there are sufficient grounds before the Court to adjudicate Plaintiff‟s Motion without resort to a hearing. Specifically, the record evidence concerning Defense counsel‟s handling of the September Documents warrants the entry of sanctions.
Upon receiving the September Documents from their client(s), Defense counsel retained Craig Simpson ("Mr. Simpson"), a Pittsburgh attorney claiming expertise in the areas of legal ethics and professional responsibility. See Defs.‟ Opp‟n Br. at 4. In an opinion letter dated September 21, 2009 (the same date this lawsuit was filed), Mr. Simpson stated:
The packet of information [that the unspecified Defendant] received [in September, 2009] consists of various internal emails of [Plaintiff], which the client believes is very beneficial to him and the other [Defendants]. Your question to me [is] whether there [is] any ethical prohibition against using the information which was surreptitiously provided to him by the unknown source . . . . Additional pertinent facts are[:] (1) your client did absolutely nothing to solicit the materials in question[;]*fn3 (2) the materials provided to your client occurred prior to any litigation being instituted[;], (3) the materials provided to your client were so provided prior to [Plaintiff] being represented by counsel in the dispute, due to the fact that ligation had not yet been instituted[;] and (4) all pre-litigation negotiations to resolve any disputes were occurring directly between your current clients . . . and [Plaintiff].
[T]his matter does not fall within Rule of Professional Conduct 4.2, dealing with "Communication with Person Represented by Counsel.‟ Moreover, I have carefully reviewed Rules of Professional Conduct 4.3 (entitled "Dealing with Unrepresented Persons‟) and 4.4 (entitled "Respect for Rights of Third Persons‟)[.] None of the provisions of Rules 4.3 and 4.4 deal with your situation, and it is my opinion that any attempt to apply any of those provisions to your situation would be a stretch, to say the least. I should also add that[,] while Rules 4.3 and 4.4 would seem to be the proper Rules to review[,] I have also reviewed the remaining Rules of Professional Conduct, and I simply cannot find anything that would prohibit your use of the information in question.
As previously determined by the Court, at least some of the September Documents are, on their face, covered by Plaintiff‟s attorney-client privilege. See January 13th Order at 2.
It is unclear whether Mr. Simpson, as of the drafting of his September 21st opinion letter, had been advised of this fact. See discussion supra (stating only that "the client believes [that the September Documents are] very beneficial to him and the other [Defendants]"). In a second opinion letter dated January 7, 2010, however, Mr. Simpson ratified his opinions, notwithstanding clear references to attorney-client privilege. See Ex. A to Doc. 66.
In one respect, Mr. Simpson is correct: an appropriate starting point for the Court‟s analyses is the Pennsylvania Rules of Professional Conduct. See W.D. Pa. L.R. 83.3(A)(2) (adopting same). Pennsylvania Rule 4.4(b) states: "[a] lawyer who receives a document relating to the representation of the lawyer‟s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender." Id. Of course, the "production" in question here was not "inadvertent," but rather intentional and unauthorized. As the explanatory comment to Rule 4.4(b) confirms: "[T]his Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person." Id. at cmt. 2.
Given the conclusory nature of Mr. Simpson‟s opinion letters, the Court may only speculate that he read the aforementioned provisions and concluded that no ethical concerns were implicated. The comment to Rule 4.4(b), however, begs the question whether attorneys and/or judicial officers must, under the circumstances, throw up their hands and conclude that nothing can or should be done to protect or ameliorate the ...