United States District Court, M.D. Pennsylvania
Carlson Magistrate Judge
M. MUNLEY UNITED STATES DISTRICT JUDGE
the court for disposition is the defendant's appeal to a
discovery order issued by The Honorable Martin C. Carlson,
U.S. Magistrate Judge, regarding the defendant's motion
to quash a subpoena served by the plaintiff upon the
defendant's private investigator. This matter has been
fully briefed and is ripe for disposition.
3, 2016, Plaintiff R.D. brought claims of battery,
negligence, and negligent hiring and supervision in
connection with an incident of alleged sexual abuse which
occurred while the plaintiff, who was a minor child at the
time, was participating in a camping excursion conducted by
Defendant Shohola Camp Ground and Resort. The plaintiff
alleges that another camper, identified in this litigation as
N.S., sexually assaulted the plaintiff during this camping
excursion. It is further alleged that N.S. may have had
inappropriate sexual contact with two other minors, G.M. and
E.J., who shared a tent with the plaintiff and N.S during
this time. G.M. and E.J. are not parties to this lawsuit.
matter was referred to Magistrate Judge Carlson for pretrial
management and resolution of discovery disputes on March 7,
2017. (Doc. 63). On July 19, 2017, the defendant filed a
motion to quash a subpoena to appear and testify at a
deposition issued by the plaintiff to Gary Trobe, the
defendant's private investigator. (Doc. 136). The
defendant argued that the subpoena necessarily invaded the
work-product doctrine. The parties respectively briefed the
motion, and on October 6, 2017, Magistrate Judge Carlson
issued an order denying the defendant's request. (Doc.
defendant appealed the ruling of Magistrate Judge Carlson on
October 20, 2017. (Doc. 151). The plaintiff filed a brief in
opposition to the defendant's appeal on November 13,
2017. (Doc. 158).
standard of review for a magistrate judge's order on a
non-dispositive motion is to determine if the magistrate
judge's ruling was clearly erroneous or contrary to law.
28 U.S.C. 636(b)(1)(A). The Supreme Court has held that a
finding is “clearly erroneous” when,
“although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948). “[A] Magistrate Judge's
ruling is contrary to law if ‘the Magistrate Judge
misinterpreted or misapplied the applicable law.' ”
Kendricks v. Hertz Corp., Civ. No. 2005-0164, 2008
WL 3914135, at *2 (D.V.I. Aug. 18, 2008) (citation omitted).
“The party who filed the appeal bears the burden of
establishing that the magistrate judge's decision is
clearly erroneous or contrary to law.” Control
Screening, LLC v. Integrated Trade Sys., Inc., Civ. No.
10-499, 2011 WL 3417147, at *6 (D.N.J. Aug. 3, 2011).
issue before us stems from the plaintiff's desire to
depose Gary Trobe, the defendant's private investigator,
concerning his interactions with E.J. and G.M., the two minor
children who shared a tent with the plaintiff and N.S. during
the camping excursion, as well as Trobe's interactions
with Massachusetts State Police Detective Matthew Cosgrove.
The plaintiff believes that Trobe may have engaged in
inappropriate conduct or coercion of these witnesses
throughout these proceedings.
noted above, the defendant filed a motion to quash a subpoena
issued to Trobe to appear and testify at a deposition,
arguing that any testimony he could possibly give is
protected work-product. Magistrate Judge Carlson, the
magistrate judge assigned to handle all pretrial discovery in
this case, denied the defendant's motion to quash,
finding that the plaintiff “had made a sufficient
showing to entitle the plaintiff to undertake a narrow line
of questioning specifically designed to determine whether
Trobe engaged in inappropriate conduct or coercion of the
non-party witnesses, which does not run afoul of the
work-product doctrine.” (Doc. 149 at 7).
defendant now appeals the magistrate judge's ruling,
contending that the decision is clearly erroneous, once again
arguing that any questioning of Trobe will necessarily invade
work-product privilege. In response, the plaintiff contends
that the purpose of the deposition is not to obtain
Trobe's written reports or statements, rather plaintiff
seeks the facts surrounding Trobe's interactions with,
statements to, and believed intimidation of these non-party
witnesses. Such facts are not protected by the work-product
privilege, according to the plaintiff.
careful consideration, we will affirm the ruling of
Magistrate Judge Carlson, and deny the defendant's motion
to quash. A review of the record reveals that the parties
both agree that the work-product privilege doctrine, as set
forth in Federal Rule of Civil Procedure 26(b)(3), protects
“documents and tangible things that are prepared in
anticipation of litigation.” The purpose of the
doctrine is to “shelter the mental processes of the
attorney, providing a privileged area within which he can
analyze and prepare his client's case.” In re
Cendant Corp. Sec. Litig., 343 F.3d 658, 661-662 (3d
Cir. 2003). As such, “opinion work product,
‘which consists of mental impressions, conclusions,
opinions, or legal theories of an attorney, is [also]
afforded almost absolute protection' and it ‘is
discoverable only upon a showing of rare and exceptional
circumstances.'” Dempsey v. Bucknell
Univ., 296 F.R.D. 323, 328-29 (M.D. Pa. 2013) ...