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Zachary William Bare, et al v. Kelly Cruz

April 2, 2012

ZACHARY WILLIAM BARE, ET AL., PLAINTIFFS,
v.
KELLY CRUZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Slomsky, J

OPINION

I. INTRODUCTION

Before the Court is Plaintiffs' Motion to Compel Production of Documents Pursuant to Rule 45(c)(2)(B)(i) ("Motion to Compel"). (Doc. No. 37.) This case arises out of an incident involving Defendant State Police Trooper Kelly Cruz and his alleged use of excessive force against Plaintiff Zachary Bare. (Doc. No. 1.) Plaintiff Bare asserts a constitutional claim against Defendant Cruz and also against Defendant Frank E. Pawlowski, Pennsylvania State Police Commissioner, pursuant to 42 U.S.C. § 1983 (Counts I and II). (Id. ¶¶ 29-37.) In addition, Plaintiff Bare and his mother, Kimberly Bare, assert state tort claims against Defendant Cruz (Counts III and IV). (Id. ¶¶ 38-40, 42-44.)

During discovery, a dispute arose over the production of documents by the Pennsylvania State Police ("PSP") in response to a subpoena served by Plaintiffs. Specifically at issue are three documents containing email communications between a PSP Internal Affairs investigator and state prosecutors. Defendant Pawlowski argues that these communications are protected by attorney-client privilege and should not be disclosed. On December 18, 2011, Plaintiffs filed the instant Motion to Compel, arguing that the documents are not privileged and should be made available to Plaintiffs. (Doc. No. 37.) On December 23, 2011, Defendant Pawlowski filed a Response in Opposition to Plaintiffs' Motion to Compel (Doc. No. 42), and on January 4, 2012, a hearing was held on the Motion to Compel (Doc. No. 45).

For reasons discussed below, the Court finds that the disputed documents are protected by attorney-client privilege, and will deny Plaintiffs' Motion to Compel.

II. STATEMENT OF FACTS

On August 19, 2009, during a drug investigation conducted by the Pennsylvania State Police ("PSP"), Defendant Kelly Cruz ("Defendant Cruz") allegedly entered the home of Plaintiff Kimberly Bare ("Kimberly") and assaulted her son Zachary ("Zachary") (collectively "Plaintiffs"). (Doc. No. 1 ¶¶ 9, 11.) The Complaint states that Zachary suffered serious personal injury when Defendant Cruz "used his boot to stomp [Zachary's] face into a tile floor while [he] was handcuffed and submissive on the kitchen floor." (Id. ¶ 9.) Kimberly was allegedly forced by officers to watch the assault on her son, causing her severe emotional distress.*fn1 (Id. ¶¶ 11-12.)

On September 2, 2009, in accordance with PSP procedure, Zachary reported Defendant Cruz's conduct by filing a complaint with the PSP Internal Affairs Division. (Id. ¶ 22.) Thereafter, on November 23, 2009, Zachary filed with the Chester County District Attorney a private criminal complaint against Defendant Cruz, pursuant to Rule 506 of the Pennsylvania Rules of Criminal Procedure.*fn2 (Id. ¶ 23.) Due to a potential conflict of interest, the Chester County District Attorney referred the matter to the Pennsylvania Attorney General for review and investigation. (Id.)

Thereafter, on September 8, 2010, Plaintiffs commenced the instant civil litigation against Defendant Cruz and Defendant Frank E. Pawlowski, Pennsylvania State Police Commissioner ("Defendant Pawlowski"). (Doc. No. 1.) As of that date, neither Plaintiffs nor their attorney were aware of the outcome of the PSP internal investigation of the conduct of Cruz on August 19, 2009. (Id. ¶ 22.)*fn3

During discovery in this case, Plaintiffs served a Rule 30 Notice of Deposition and a subpoena duces tecum on the PSP.*fn4 The subpoena requested the production of electronically stored information relating to the August 19, 2009 incident and the subsequent internal affairs investigation of Defendant Cruz.*fn5 The PSP produced a number of responsive documents, as well as a privilege log in which counsel identified additional responsive documents purportedly protected by attorney-client privilege. (Doc. No. 37 ¶ 3.) The parties have resolved by agreement the majority of the privilege disputes. (Id.) However, they have been unable to come to a resolution on three remaining documents. (Id.) As a result, Plaintiffs filed the instant Motion to Compel.*fn6 During the January 4, 2012 hearing, counsel for Defendant Pawlowski on behalf of the PSP turned over the three documents to the Court for in camera review.*fn7

The three documents at issue consist of communications between PSP Internal Affairs investigator, Lieutenant Kathy Jo Winterbottom ("Lt. Winterbottom") and Attorney John Flannery ("Flannery") of the Attorney General's Office and Chester County District Attorney John Carroll ("Carroll").*fn8 (Doc. No. 37 ¶¶ 4-5.) The documents are described in the privilege log as follows:

(1) On April 23, 2010, an email from John Flannery to Lieutenant Winterbottom regarding Trooper Kelly Cruz;

(2) On February 17, 2010, an email from John Flannery to Lieutenant Winterbottom regarding Trooper Kelly Cruz; and

(3) On November 10, 2009, an email from John Carroll to Lieutenant Winterbottom regarding Trooper Kelly Cruz. (Doc. No. 37 ΒΆ 4.) In general, these communications relate to whether there was sufficient information to prosecute Defendant ...


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