United States District Court, E.D. Pennsylvania
LAWRENCE F. STENGEL, District Judge.
Carloyn Casey brings this sex discrimination and equal pay act claim against her former employers Unitek Global Services, Inc. and Unitek USA LLC [collectively, "Unitek" or "defendants"]. Unitek has filed a motion for protective order claiming that Ms. Casey was employed as an attorney, and she should be prohibited from using any privileged communications. Unitek also requests that I quash the subpoena served on Marc Gilbert. I will deny both motions.
Upon earning her Juris Doctor from Widener University in 1993, Ms. Casey pursued a career in insurance claims management. She worked in a hospital claims department, two insurance brokerages, and a human resources firm where she designed a workers compensation program. In 2011, Unitek hired Ms. Casey as its Director of Risk management. Unitek promoted Ms. Casey to Vice President of Safety and Risk in January 2012. During the course of her employment, Ms. Casey complained to her superiors that she was being paid less than her male colleagues and that she was being sexually harassed. On January 24, 2013, Ms. Casey emailed a written complaint regarding the repeated sexual harassment by Marc Gilbert. Within minutes of sending her complaint, Ms. Casey was terminated.
Ms. Casey filed this Title VII and Equal Pay Act case on May 9, 2014. I conducted a Rule 16 conference with all counsel on August 15, 2014. Early settlement of the claims seemed possible. Nonetheless, discovery efforts quickly deteriorated, and on September 11, 2014, Unitek filed a motion for a temporary restraining order. Unitek claims that plaintiff was its attorney and that she was using attorney-client communications to prosecute her claims. Following a telephone conference with all counsel, I denied the temporary restraining order, and I directed counsel to file this motion for a protective order instead. I also stayed discovery until I resolved whether any attorney-client privilege applied. Unitek has also filed a motion to quash a subpoena on Marc Gilbert. Unitek filed several exhibits with each motion which it requests to file under seal.
On November 24, 2014, I stayed these proceedings due to the defendants' bankruptcy filing. On January 16, 2015, defendant's filed a notice of effective date of confirmed bankruptcy plan which terminated the bankruptcy stay. These motions are now ripe for disposition.
a. Motion for Protective Order
Unitek moves for a protective order on three grounds. First, Unitek asserts that Ms. Casey was employed as an attorney and should be prohibited from using confidential attorney-client communications to prosecute her case. Second, Unitek argues that a confidentiality agreement prohibits Ms. Casey's use of information she learned during her employment. Finally, Unitek maintains that Ms. Casey's discovery requests are overbroad and unduly burdensome. I find that Unitek has not shown good cause for the issuance of a protective order, and I will deny its motion.
A motion for a protective order is a proper method for challenging inappropriate discovery requests. Federal Rule of Civil Procedure 26(c) provides that, upon a motion by a party from whom discovery is sought and for good cause shown, the court may enter a protective order preventing discovery on certain matters. A party "show[s] good cause by demonstrating a particular need for protection." Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, " are insufficient to show good cause. Id . (citations omitted).
1. Attorney-Client Privilege
A party may demonstrate good cause for the issuance of a protective order by establishing that the sought after discovery is protected by attorney-client privilege. See, Pearson, 211 at 65; Fid. & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 522 (E.D. Pa. 1996). The privilege "applies to any communication that satisfies the following elements: it must be (1) a communication (2) made between the client and the attorney or his agents (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client." In re Processed Egg Products Antitrust Litig., 278 F.R.D. 112, 117 (E.D. Pa. 2011) (citing In re Teleglobe Commc'ns Corp., 493 F.3d 345, 359 (3d Cir.2007)). "The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts...." Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S.Ct. 677, 685, 66 L.Ed.2d 584 (1981) (quoting Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (Pa. E.D. 1962)). While the privilege serves the important purpose of "encouraging full and frank communication between attorneys and their clients, " Upjohn Co., 449 U.S. at 389, "the privilege obstructs the search for the truth... and must be strictly confined within the narrowest possible limits consistent with the logic of its principle." In re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir. 1979) (citations omitted). "The burden of proving that the (attorney-client) privilege applies is placed upon the party asserting the privilege." Matter of Grand Jury Empanelled Feb. 14, 1978, 603 F.2d 469, 474 (3d Cir. 1979) (citing United States v. Landof, 591 F.2d 36, 38 (9th Cir. 1978)).
Attorney Client Privilege does not support the issuance of a protective order in this case because Ms. Casey was not Unitek's attorney. An attorney-client relationship arises when a person manifests an intent that the lawyer provide legal services and the lawyer consents to do so. Restatement (Third) of Law Governing Law § 14 (2000). The client need not pay a retainer nor enter into a contract, but the client must enter into the relationship for the purpose of obtaining legal advice. See U.S. v. Costanzo, 625 F.2d 465, 468-69 (3d. Cir. 1980); Martin Marietta Materials, Inc. v. Bedford Reinforced Plastics, Inc., 227 F.R.D. 382, 392 (W.D. Pa. 2005) ("Rather, the existence of the privilege depends upon the attempt by a party to secure some legal advice or to procure some legal services."); Morisky v. Pub. Serv. Elec. & Gas Co. (""PSE&G"), 191 F.R.D. 419, 424 (D.N.J. 2000) (citations omitted) ("[T]he professional relationship for purpose of the privilege for attorney-client communications hinges upon the client's belief that he is consulting a lawyer in that capacity'...."). These general principles also apply to determine if a corporation established a confidential relationship with an attorney, or as in this case, in house counsel. See Upjohn Co. v. United States, 449 U.S. 383, 390 (1981) ("[T]his Court has assumed that the privilege applies when the client is a corporation.")
Unitek did not hire Ms. Casey to be its attorney. Rather, Unitek employed Ms. Casey as the Director of Risk Management and promoted her to Vice President of Risk and Safety. In these positions, Ms. Casey led the risk management and safety departments which were separate from and not reportable to Unitek's General Counsel. Neither position required Ms. Casey to have any legal knowledge, much less a juris doctor. Instead, Ms. Casey was responsible for maintaining adequate insurance for Unitek and its subsidiaries, analyzing risk, reducing loss and managing litigation arising from insurable claims. Job Description, Director of ...