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R.D v. Shohola Camp Ground and Resort

United States District Court, M.D. Pennsylvania

March 30, 2017

R.D., Plaintiff

          (Judge Munley)


          MARTIN C. CARLSON United States Magistrate Judge

         I. Factual Background

         This case involves allegations of battery, negligence and negligent hiring and supervision in connection with an episode of alleged sexual abuse which occurred in 2007 when the then-minor plaintiff, R.D., was participating in a camping excursion conducted by the defendant. In the course of this excursion it is alleged that another camper, identified as N.S., sexually assaulted the plaintiff, and may have had inappropriate sexual contact with two other minors who shared a tent with the plaintiff and N.S. during this excursion. These two other minors are identified in these proceedings as G.M. and E.J.

         On March 7, 2017, this matter was referred to the undersigned for pretrial management and resolution of discovery disputes. Since that time we have addressed, and are in the process of addressing, numerous discovery disputes between these parties. One of these discovery issues relates to a dispute regarding whether, and to what extent, the plaintiff's counsel may have waived the work-product privilege with respect to an investigative interview which the plaintiff's private investigator conducted with E.J. on February 24, 2017.

         These waiver issues arose in the course of a deposition of G.M. which was conducted on March 7, 2017. (In camera submission, Ex. E.) In the course of this deposition, G.M. testified about this 2007 camping excursion, and categorically denied any knowledge of any sexual contact between N.S., R.D., or any other camper in the tent. (Id.) G.M. also denied recalling that anyone else was in the tent besides himself, R.D., and N.S. (Id.) In the course of cross examining G.M., the plaintiff's counsel played an excerpt from a videotaped interview which the plaintiff's private investigator had conducted with another camper, E.J., on February 24, 2017. In this videotape interview excerpt, E.J. identifies himself as the fourth occupant of the tent during this 2007 excursion, along with N.S., R.D., and G.M. E.J. also described sexual activity which took place in the tent during this excursion. Specifically, E.J. describes a game of Truth or Dare which was initiated by N.S., and culminated in an act of anal intercourse between N.S. and E.J. (Id.) The plaintiff's counsel then used this selective disclosure of the investigative interview to question G.M. at some length regarding the completeness and accuracy of his recollection of these events. (Id.)

         In the wake of this deposition, the defendant has moved for the disclosure of the entirety of the videotaped investigative interview of E.J. (Doc. 70.) While acknowledging that such investigative interviews are typically covered by the work product privilege, the defendant argues that plaintiff counsel's use of excerpts of the interview during the deposition of G.M. now constitutes a waiver of the privilege, justifying wholesale disclosure of the interview in its totality. R.D.'s counsel opposes this request, contending that the disclosure of some portion of an interview encompassed by the work product privilege does not amount to a waiver of the privilege as to the entire interview.

         At the court's direction, the plaintiff has provided for our in camera inspection: (1) the excerpts of the videotape interview played at G.M.'s deposition; (2) the entirety of the interview; (3) some investigative notes from the interview; (4) and the deposition of G.M., in video and transcript form. We have reviewed these materials in camera, weighing questions of work product privilege waiver in light of the guiding legal principles announced in In re Teleglobe Commc'ns Corp., 493 F.3d 345, 361 (3d Cir. 2007). Having conducted this review, for the reasons set forth below, we will GRANT this motion to compel, in part, and DENY the motion, in part. Specifically, we will direct the disclosure of only those portions of the interview of E.J. which provide a complete background, and context on E.J.'s recollection of the specific events that allegedly transpired in the tent shared by these boys some ten years ago in 2007.

         II. Discussion

         Issues relating to the proper scope and nature of discovery rest in the sound discretion of the court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). A court's decisions regarding the conduct of discovery, therefore, will be disturbed only upon a showing of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This far-reaching discretion extends to rulings by United States Magistrate Judges on discovery matters. In this regard:

District courts provide magistrate judges with particularly broad discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585 (D.N.J.1997). When a magistrate judge's decision involves a discretionary [discovery] matter . . ., “courts in this district have determined that the clearly erroneous standard implicitly becomes an abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224 F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States, 943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate judge's discovery ruling “is entitled to great deference and is reversible only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999) (holding that discovery rulings are reviewed under abuse of discretion standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's resolution of discovery disputes deserves substantial deference and should be reversed only if there is an abuse of discretion).

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).

         This discretion extends to resolution of questions regarding the application of the work product privilege. “The work-product doctrine is embodied within Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides that ‘a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial' unless otherwise discoverable or a party shows substantial need for the material. Fed.R.Civ.P. 26(b)(3). The doctrine is, in essence, a recognition that a lawyer requires a ‘certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.' Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The doctrine thus is intended ‘to protect material prepared by an attorney acting for his client in anticipation of litigation.' United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir.1990); see also United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (‘At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.').” Craig v. Rite Aid Corp., No. 4:08-CV-2317, 2012 WL 426275, at *5-6 (M.D. Pa. Feb. 9, 2012), on reconsideration in part, No. 4:08-CV-2317, 2012 WL 1079472 (M.D. Pa. Mar. 30, 2012).

         As a general rule, private investigator interviews conducted on behalf of counsel in preparation of litigation are encompassed by the work product privilege. Therefore, disclosure of these interviews typically may not be compelled, provided that the witness is available to be deposed. Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329 (M.D. Pa. 2013).[1] The privilege, however, can be waived and the privilege takes flight when otherwise confidential information is ...

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