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Carol A. Sullivan and Bruce Sullivan, Individually and As v. Warminster Township

March 4, 2011

CAROL A. SULLIVAN AND BRUCE SULLIVAN, INDIVIDUALLY AND AS
CO-ADMINISTRATORS OF THE ESTATE OF SEAN SULLIVAN,
v.
WARMINSTER TOWNSHIP, ET AL.



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court is Plaintiffs' Motion to Compel. (ECF No. 44.) For the following reasons, Plaintiffs' Motion will be denied.

I. BACKGROUND

Carol and Bruce Sullivan filed this action against Warminster Township, Warrington Township, and a number of police officers from both townships, alleging various causes of action arising out of the shooting death of their son, Sean Sullivan, by Warminster Township police officers.*fn1 The facts underlying Plaintiffs' complaint are set forth in greater detail in Sullivan v. Warminster Township, No. 07-4447, 2010 WL 2164520, at *1-2 (E.D. Pa. May 27, 2010).

Six days after Sean Sullivan was shot and killed, the insurance company for the Warminster Defendants, Delaware Valley Insurance Trust ("DVIT"), opened a claim file. DVIT contacted the law firm of Marshall, Dennehey, Warner, Coleman & Goggin ("MDW"), and agreed to retain the firm "to represent Warminster Township and its officers at this time for any potential claim(s) that may be filed in the future." (Engagement Letter 1, in camera filing.) DVIT asked Joseph Santarone of MDW to reach out to Warminster Township Police Chief Michael Murphy "to advise of DVIT's official appointment of [MDW's] legal representation to the township and to formalize this to the Chief and T[ownship] Manager in writing." (Id.) DVIT further informed Santarone that "[i]f the Chief needs any legal assist[ance] for the investigation, we ask that you and your team provide anything necessary. . . . If any legal letter of rep[presentation] arrives, please advise the Chief etc. to advise you and DVIT immediately." (Id.) MDW replied to DVIT by letter to "acknowledge receipt of the above-captioned assignment . . . ." (Id. at 3.) The email from DVIT to Santarone bears the subject heading "Sullivan v. Warminster."

The internal investigation was performed by Christopher Boyle, an attorney with the MDW law firm and a former police officer. At the close of the investigation, the Warminster Defendants publicly announced that the investigation had revealed no improprieties in either their behavior or their policies. (Pls.' Mot. Ex. B at 16, ECF No. 44-4.) Warminster Police Chief Michael Murphy was quoted by the Bucks County Courier Times as stating that, "[w]e've gotten a clean bill of health on everything." (Id.) Although the article did not reveal that Boyle had performed the investigation, it did state that he had not been paid by the Township for his work. The article further revealed that "the former lieutenant made his decision based on reports of the shooting given to him by township police, physical evidence, a computer-generated re-enactment and interviews with the involved officers," but Boyle "would not release any of that information to the press or the public." (Id.)

Plaintiff learned of the existence of Boyle's report in March of 2008 when Defendants responded to a discovery request. Defendants' response advised that the report was privileged. After the deposition of Chief Murphy in October of 2010 Plaintiffs filed the instant Motion to Compel seeking discovery of the report. Defendants oppose discovery of the report, asserting attorney-client and work-product privilege. We have examined the disputed documents in camera, and the matter is now ripe for disposition.

II. LEGAL STANDARD

District courts have broad discretion to manage discovery. Sempier v. Johnson & Higgins, 45 F.3d 724, 734 (3d Cir. 1995). When a federal-court action contains both federal- and state-law claims, the court applies federal privilege law. Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000). The Third Circuit has defined the attorney-client privilege as follows:

[t]he traditional elements of the attorney client privilege that identify communications that may be protected from disclosure in discovery are: (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) (citations omitted). The party claiming that evidence is subject to the attorney-client privilege bears the burden of establishing the privilege. United States v. Voigt, 89 F.3d 1050, 1067 n.6 (3d Cir. 1996). Furthermore, "under traditional waiver doctrine a voluntary disclosure to a third party waives the attorney-client privilege even if the third party agrees not to disclose the communications to anyone else." Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1427 (3d Cir. 1991).

The work-product privilege is codified by Federal Rule of Civil Procedure 26(b)(3), which states that: a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Fed. R. Civ. P. 26(b)(3). As with the attorney-client privilege, the party claiming that evidence is protected attorney work product has the burden of establishing that work-product protection applies. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000). Unlike the attorney-client privilege, disclosure to a third party only waives the work-product privilege if it permits an adversary to gain access to the information. See Westinghouse Elec. Corp., 951 F.2d at 1428 ("Most courts hold that ...


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