Southeastern Pennsylvania Transportation Authority v. CaremarkPCS Health, L.P.

254 F.R.D. 253, 2008 U.S. Dist. LEXIS 99352
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 9, 2008
DocketCivil Action No. 07-2919
StatusPublished
Cited by17 cases

This text of 254 F.R.D. 253 (Southeastern Pennsylvania Transportation Authority v. CaremarkPCS Health, L.P.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southeastern Pennsylvania Transportation Authority v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 2008 U.S. Dist. LEXIS 99352 (E.D. Pa. 2008).

Opinion

MEMORANDUM AND OPINION

L. FELIPE RESTREPO, United States Magistrate Judge.

Before the Court is Defendant Care-markPCS Health, L.P.’s (“Caremark”) Memorandum of Law (Doc. No. 105) objecting to the production of certain documents pursuant to the attorney-client privilege. See Def.’s Mem. 1. Caremark’s in-house attorney that worked on the contract at issue in this litigation, Sara Hankins, Esquire, has submitted an affidavit in support of Defendant’s position. (Doc. No. 110). See Hankins Aff. 114. Caremark maintains that all communications at issue were “authored for the primary purpose of both obtaining and providing legal advice relative to the contract,” and that all individuals involved in the communications were “directly involved in at least some aspect of the negotiation or finalization of the SEPTA contract.” Def.’s Mem. 2, 5-6.

Plaintiff Southeastern Transportation Authority’s (“SEPTA”) Letter Memorandum (Doc. No. 106) argues that the documents are not privileged. See Pl.’s Mem. 1. SEPTA seeks production of e-mail strings, memoran-da, and draft documents sent between those Caremark employees who worked on the SEPTA account and contract negotiations and Caremark’s in-house counsel and paralegal responsible for providing legal advice on the SEPTA contract.1 See Def.’s Amended [257]*257Supp. Priv. Log. SEPTA argues that the “primary purpose” of these communications between business personnel and in-house legal staff was to obtain business advice, not legal advice and contends that in some cases, any potential privilege was waived because the documents were too widely disseminated. See Pl.’s Mem. 3-4, 6-8,10,12-18.

The Court finds that Caremark has satisfied its burden of proving that the documents are covered by the attorney-client privilege and need not be produced. The Court has reviewed these documents in camera, and will explain the application of the attorney-client privilege to each document below.2

I. Discussion

“Pennsylvania privilege law governs this dispute because the underlying action arises under Pennsylvania law.” Santer, 2008 WL 821060, at *1, 2008 U.S. Dist. LEXIS 23364, at *2 (citing Fed.R.Evid. 501; Montgomery County v. Microvote Corp., 175 F.3d 296, 301 (3d Cir.1999)). In Pennsylvania, the following elements must be met in order for a party to successfully assert the attorney-client privilege:

(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 or her 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 of 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 the client.

Santer, 2008 WL 821060, at *1, 2008 U.S. Dist. LEXIS 23364, at *2 (quoting Rhone-Poulenc Rorer v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir.1994)). The two disputed issues in the present case are whether the contested communications were made primarily to secure legal advice and whether the privilege was waived with respect to certain documents. See e.g., Pl.’s Mem. 1, 6, 8.

The attorney-client privilege has historically been applied only to “communications from a client to an attorney,” but “Pennsylvania courts have ... developed a corollary doctrine covering communications from an attorney to a client when such communications reflect the communications from the client to the attorney.” Santer, 2008 WL 821060, at *1 n. 3, 2008 U.S. Dist. LEXIS 23364, at *4-5 n. 3 (citations omitted); See also Ford, 110 F.3d at 965 (“the entire discussion between a client and an attorney undertaken to secure legal advice is privileged, no matter whether the client or the attorney is speaking.”). Communications with the subordinate of an attorney, such as a paralegal, are also protected by the attorney-client privilege so long as the subordinate is “acting as the agent of a duly qualified attorney under circumstances that would otherwise be sufficient to invoke the privilege.” Dabney v. Investment Corp. of America, 82 F.R.D. 464, 465 (E.D.Pa.1979) (citing 8 Wigmore, Evidence § 2301 (McNaughton Rev.1961)).

The fact that the client is a corporation does not vitiate the attorney-client privilege. Kramer v. Raymond Corp., 1992 WL 122856, at *1, 1992 U.S. Dist. LEXIS 7418, at *2-3 (E.D.Pa. May 29, 1992) (citing Upjohn Co. v. United States, 449 U.S. 383, 389-90, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). “[T]he privilege applies to communications by a corporate employee concerning matters within the scope of his duties purposefully made to enable an attorney to provide legal advice to the corporation.” AAMCO Transmissions, Inc. v. Marino, 1991 WL 193502, at *2, 1991 U.S. Dist. LEXIS 13326, at *8 (E.D.Pa. Sept. 24, 1991) (citing Upjohn, 449 [258]*258U.S. 383, 101 S.Ct. 677; Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1492 (9th Cir.1989)). “Likewise, it is clear that the privilege may apply where the communication is to in-house counsel rather than to outside counsel retained for a particular matter.” Kramer, 1992 WL 122856, at *1, 1992 U.S. Dist. LEXIS 7418, at *3 (citing Upjohn, 449 U.S. at 394-95, 101 S.Ct. 677). The “primary purpose” of the communication at issue must be “to gain or provide legal assistance” for the privilege to apply due to the fact that “in-house counsel may play a dual role of legal advisor and business advis- or.” Kramer, 1992 WL 122856, at *1, 1992 U.S. Dist. LEXIS 7418, at *3. In this regard, the Third Circuit has held that even when “the decision include[s] consideration of’ various business concerns, the attorney-client privilege still applies to the communications if the decision “was infused with legal concerns and was reached only after securing legal advice.” Faloney, 254 F.R.D. at 209-10, 2008 WL 2631360, at *5 (quoting Ford, 110 F.3d at 966).

“[T]he ‘scope of an individual’s employment is ... highly relevant to the question of maintenance of confidentiality.’ ” SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 476 (E.D.Pa.2005) (quoting Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 539 (N.D.Ill.2000)). “The communications retain their privileged status if they [sic] information is relayed to other employees of officers of the corporation on a need to know basis.” Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 633 (M.D.Pa.1997).

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Bluebook (online)
254 F.R.D. 253, 2008 U.S. Dist. LEXIS 99352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southeastern-pennsylvania-transportation-authority-v-caremarkpcs-health-paed-2008.