United States District Court, E.D. Pennsylvania
D. WOLSON, J.
latest discovery dispute in this case, and there have been
many, centers on whether certain documents on TD Bank's
privilege log are really privileged or whether the
work-product doctrine protects them. The Court has conducted
an in camera review of the three categories of
documents at issue and concludes as follows:
• Staff Selection Worksheets (“SSWs”) (Priv.
Nos. 15-18, 21-23, 25-26, 29-38, 40, 42-45, 47-52, 55, 57,
60-64, 66-67, 73, and 78-79 are not privileged;
• ERE Target Operating Models (Priv. Nos. 1-2, 102, 115,
and 128) are privileged, and TD Bank can maintain its
redactions of these documents; and
• The majority of documents that TD Bank claims relate
to its investigation of a complaint against Mr. LaVeglia
(Priv Nos. 6, 10, 112, and 118) are not privileged or subject
to work product protection, but one document (Priv. No. 11)
contains three e-mails that can be redacted to protect the
attorney-client privilege and work product protection.
Court will also require TD Bank to amend its privilege log
yet again in order to comply with Federal Rule of Civil
Attorney Client Privilege
attorney-client privilege protects communications from
(1) the asserted holder of the privilege is or sought to
become a client; (2) the person to whom the communication was
made (a) is a member of the bar of a court, or his
subordinate, and (b) in connection with this communication is
acting as a lawyer; (3) the communication relates to a fact
of which the attorney was informed (a) by his client (b)
without the presence of strangers (c) for the purpose of
securing primarily either (i) an opinion on law or (ii) legal
services or (iii) assistance in some legal proceeding, and
(d) not for the purpose of committing a crime or tort; and
(4) the privilege has been (a) claimed and (b) not waived by
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d
851, 862 (3d Cir. 1994).
purpose behind the attorney-client privilege is “to
encourage clients to make full disclosure of facts to counsel
so that he may properly, competently, and ethically carry out
his representation. The ultimate aim is to promote the proper
administration of justice.” In re Chevron
Corp., 633 F.3d 153, 164 (3d Cir. 2011) (internal
quotations omitted). In all circumstances, however, the facts
underlying any given communication remain discoverable.
See Upjohn Co. v. United States, 449 U.S. 383,
395-96 (1981) (“Protection of the privilege extends
only to communications not to facts. The fact is one thing
and a communication concerning that fact is entirely
different.” (quotation omitted)). Moreover, because the
attorney-client privilege obstructs the truth-finding
process, it is construed narrowly. See Westinghouse Elec.
Crop. v. Republic of Philippines, 951 F.2d 1414, 1423
(3d Cir. 1991).
work-product doctrine, set forth in Federal Rule of Civil
Procedure 26(b)(3), “protects from discovery materials
prepared or collected by an attorney in the course of
preparation for possible litigation.” In re Grand
Jury Subpoena, 745 F.3d 681, 693 (3d Cir. 2014)
(internal quotations omitted). The doctrine intends to
preserve an attorney's ability to “assemble
information, sift what he considers to be the relevant from
the irrelevant facts, prepare his legal theories and plan ...