United States District Court, M.D. Pennsylvania
F. Saporito, Jr. United States Magistrate Judge.
matter is before the court on the defendant's motion for
a protective order. (Doc. 15). The defendant seeks to
preclude the plaintiffs from using a February 28, 2018 email
exchange between a representative of the defendant and
plaintiffs' counsel and the information contained within
it. The motion asks the court to award defendant counsel fees
for preparing and filing its motion and brief. For the
reasons set forth herein, we will grant the motion in part
and deny it in part.
Statement of Facts
case arises out of an automobile accident which occurred on
December 21, 2016. The plaintiffs are making claims for
breach of contract pursuant to the underinsured motorist
benefits coverage in the policy of insurance issued by the
defendant, and statutory bad faith under 42 Pa. Cons. Stat.
Ann. § 8371. (Doc. 1). The motion alleges that before
the filing of the complaint, the plaintiffs and their counsel
were in contact with Valerie Everline, the defendant's
claims adjuster, who has decision-making authority on behalf
of the defendant. (Doc. 15 ¶¶ 2, 3).
for the plaintiffs sent a settlement demand letter to the
defendant on October 10, 2017. (Id. ¶ 4). In
response to the demand letter, on November 17, 2017, defense
counsel sent a letter of representation to plaintiffs'
counsel. (Id. ¶ 5). The letter of
representation indicates that following the receipt of the
demand letter, Ms. Everline responded to plaintiffs'
counsel in writing and again by voice message and emails of
November 10, 2016, and November 16, 2016. (Doc. 15-2).
the motion alleges that on February 28, 2018, Ms. Everline
inadvertently sent an email to plaintiffs' counsel rather
than to defense counsel, the purported intended recipient.
(Doc. 15 ¶ 6). On June 6, 2019, we directed defense
counsel to provide the court with the email exchange for an
in camera review which we have conducted. After the
receipt of the alleged inadvertently sent email, the motion
alleges that plaintiffs' counsel had a direct exchange of
further communications in the form of emails with Ms.
Everline regarding the substance and merits of the
plaintiffs' claims. (Id. ¶ 10). Without
disclosing the specific details of the exchanges, the motion
avers in conclusory form that “plaintiffs' counsel
elicited information from Ms. Everline that is prejudicial to
the defendant, proprietary in nature, and protected by the
attorney-client privilege.” (Id. ¶ 11).
The defendant maintains that its counsel was not present
during these communications, he was not copied on any of
them, he did not give permission to plaintiffs' counsel
to engage in a direct communication with Ms. Everline, and he
was not informed by plaintiffs' counsel of her direct
communications with Ms. Everline. (Id.
¶¶12-14). The email can also be interpreted as
being sent to defense counsel and asking rhetorically whether
“you (in general) have a burden to prove your (in
general) damages.” Nevertheless, whether Ms.
Everline's email was intentionally or inadvertently sent
to plaintiffs' counsel is not dispositive of the issues
undisputed that on February 28, 2018, plaintiffs' counsel
knew that the defendant was represented by
counsel. Other than responding to Ms. Everline that
“I am guessing this email was for Josh, ” the
more prudent action would have been to end the communication
at that statement and forward Ms. Everline's email to
parties dispute whether there was anything confidential in
the email exchange. For the most part, the statements made
were generally expressions of the parties' respective
positions on damages. In addition, Ms. Everline also asked
for certain records for her continued review of the claim.
March 2, 2018, two days after the alleged inadvertent email
was sent, defense counsel corresponded with plaintiffs'
counsel and notified her that the February 28, 2018 email
from the defendant was “inadvertently sent” to
her. (Doc. 15-3). Further, in the letter, defense counsel
asserted that plaintiffs' counsel “correctly
noted” in her response to the email that the
defendant's email “was privileged and not intended
for” her. (Id.). We have made an in
camera review of the subject email exchange and we have
determined that it is unclear whether the email of February
28, 2018, sent by Ms. Everline to plaintiffs' counsel
was, in fact, inadvertent as the defendant maintains. There
is no doubt that Ms. Everline sent the email to
plaintiffs' counsel at 12:50 p.m. on that date and that
plaintiffs' counsel was the recipient of it. The email
begins with the words “Thanks Josh, ” but Ms.
Everline states that “I still believe you have a burden
to prove your damages.” It is beyond dispute that the
defendant would not be expected to prove damages. The email
concludes with an inquiry if “we have those
records” relating to “Cullen's”
treatment. Defense counsel was not listed as a recipient of
the email nor was he listed as receiving a copy
(“cc”) of it.
review of the email response by plaintiffs' counsel at
3:11 p.m. on the same date begins with the statement “I
am guessing this email was for Josh.” The email does
not acknowledge that the email was “privileged and not
intended for [her]” as maintained by defense counsel.
The remainder of the email describes Cullen's emotional
injuries and reasons why presumptive medications are not
beneficial for him. Finally, plaintiffs' counsel
concludes the email communication by informing Ms. Everline
that plaintiffs' counsel is ethically obligated to share
Ms. Everline's email with her clients. Ms. Everline
responded at 3:43 p.m. by referencing her self-proclaimed
thorough and prompt review of all relevant records and her
request for additional records for her review. Ms. Everline
never stated that her initial email was inadvertently sent to
plaintiffs' counsel. The email from Ms. Everline to
plaintiffs' counsel does not show that she copied defense
response to this email, plaintiffs' counsel stated in an
email at 4:03 p.m. that she previously provided Ms. Everline
with Cullen's records and that she will provide her with
Arlene's records upon her receipt of them. Ms. Everline
promptly responded at 4:10 p.m. expressing her dilemma in
making Cullen whole without treatment despite his alleged
life-altering anxiety. No. reference of an inadvertent email
was made by Ms. Everline nor does the email reflect that she
copied defense counsel. It appears that Ms. Everline shared
the entirety of the foregoing email exchange the following
day with defense counsel which presumably resulted in his
letter of March 2, 2018, directed to plaintiffs' counsel.
We find that the thrust of this email exchange centered
around the interpretation of the “tone” of the
original email from Ms. Everline which resulted in a
difference of opinion regarding it.
find it significant that in his letter of March 2, 2018, to
plaintiffs' counsel, defense counsel did not
request that the alleged inadvertent email be destroyed and
not used or disseminated to anyone in connection with the
case. Rather, it was not until approximately one year later
on February 19, 2019, when defense counsel corresponded with
plaintiffs' counsel requesting confirmation that she
“immediately destroy any and all versions, copies, or
other stored facsimiles of this email, ” and that it
not be “disseminated to any of your witnesses, experts,
or any other third parties.” (Doc. 15-4).
address whether the facts show that plaintiff's counsel
violated Rule 4.2 of the Pennsylvania Rules of Professional
Conduct as suggested by the defendant. Rule 4.2, which has
been adopted ...