United States District Court, M.D. Pennsylvania
C. CARLSON United States Magistrate Judge
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.
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.
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.)
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.
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.
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).
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).
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). The privilege, however, can be waived and
the privilege takes flight when otherwise confidential
information is ...