IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAWESE DRAYTON, Individually and as : CIVIL ACTION

Personal Representative of the Estate of :

RAYMOND DRAYTON, Deceased :

:

v. : No. 03-2334

:

PILGRIM’S PRIDE CORPORATION and :

JACK LAMBERSKY POULTRY CO., INC., :

d/b/a J.L. FOODS CO., INC. :

_____________________________________ :

LARON HARVEY, a Minor, by His Mother : CIVIL ACTION

and Guardian, SHAKANDRA HAMPTON, :

and SHAKANDRA HAMPTON :

:

v. : No. 03-3500

:

PILGRIM’S PRIDE CORPORATION and :

JACK LAMBERSKY POULTRY CO., INC. :

_____________________________________ :

JODY LEVONCHUCK, Administrator of the : CIVIL ACTION

Estate of JOSEPH CUSATO, Deceased :

:

v. : No. 04-3577

:

PILGRIM’S PRIDE CORPORATION and :

JACK LAMBERSKY POULTRY CO., INC., :

d/b/a J.L. FOODS CO., INC. :

_____________________________________ :

PATRICIA NIEMTZOW, Individually : CIVIL ACTION

and as Personal Representative of the :

Estate of FRANK NIEMTZOW, Deceased :

:

 v. : No. 04-3974

:

WAMPLER FOODS, a wholly owned :

subsidiary of PILGRIM’S PRIDE :

CORPORATION, a Delaware Corporation, :

and JACK LAMBERSKY POULTRY :

COMPANY, INC., a New Jersey :

Corporation d/b/a J. L. FOODS CO., INC. :

MEMORANDUM AND ORDER

Case 2:03-cv-03500-TJS Document 41 Filed 08/30/05 Page 1 of 6
Savage, J. August 30, 2005

In this products liability action against Pilgrim’s Pride Corporation (“Pilgrim’s Pride”)

and Jack Lambersky Poultry Co., Inc., processors and distributors of poultry products, for

injuries arising out of a Listeriosis outbreak, the plaintiffs seek documents prepared by a

non-party consultant, Ernst & Young (“E & Y”), who had prepared a continuing food safety

review for Pilgrim’s Pride before and after it recalled the suspect product on October 9,

2002. Pilgrim’s Pride has moved to quash the plaintiff’s subpoena, arguing that the material

is protected by both the “self-critical analysis” privilege and the work product doctrine.

Pilgrim’s Pride does not contend that the report prepared prior to the recall was

done in anticipation of litigation but rather as part of an ongoing safety review process. It

argues that the pre-recall report is protected by the self-critical analysis privilege. As to the

documents generated after the outbreak, it maintains that they are also covered by the

work product doctrine because its counsel engaged the consultant to assist him in any

litigation arising out of the outbreak.

Because the self-critical analysis privilege does not apply, the draft Food Safety

Report and associated documents prepared before October 16, 2002, the date the

consultant was presumably engaged to assist the defendant in any litigation, is not

protected. It is not possible to determine, on the basis of this record, whether the

engagement of E & Y was actually for litigation purposes or was merely an extension of its

earlier assignment. Thus, production of similar reports done after October 16, 2002 will not

be ordered at this time.

Background

In the Fall of 2002, there was an outbreak of Listeriosis in the northeast United

Case 2:03-cv-03500-TJS Document 41 Filed 08/30/05 Page 2 of 6
States. On October 9, 2002, Pilgrim’s Pride initiated a recall of poultry products it had

distributed. Four days later, the recall was expanded to include 27 million pounds of poultry

product produced at its Franconia, Pennsylvania plant.

E & Y had been hired by Pilgrim’s Pride to conduct a risk assessment of the food

safety processes at selected Pilgrim’s Pride plants, including Franconia, and to submit a

report detailing risks of contamination within the food processing. Among the key objectives

of the study were to “perform a risk assessment within the food safety process, identify and

evaluate controls over significant risks” and to “test controls over the most significant risks.”

E & Y issued its draft report, entitled “Food Safety Review,” on August 23, 2002,

providing “the detail of business risks, recommendations and management responses.” 

E & Y continued reviewing the processes at the plant up to and after the recall. On October

6, 2002, Pilgrim’s Pride’s counsel authored an engagement letter, requesting E & Y to

consult with him regarding matters which could arise in litigation involving the recall.

Self-Critical Analysis Privilege

Because the law of the forum state governs privilege, Pennsylvania common law

controls. Fed. R. Evid. 501. Thus, we shall apply Pennsylvania legal principles.

Pennsylvania has not recognized the self-critical analysis privilege. Although a few

lower Pennsylvania state courts have applied the privilege in limited situations, no

Pennsylvania appellate court has adopted it. In fact, the Pennsylvania Commonwealth

Court has specifically noted that the privilege has not been recognized in this state.

VanHime v. Dep’t of State, 856 A.2d 204 (Pa. Cmwlth. 2004).

The self-critical analysis privilege, where it has been applied, covers only subjective

content and not objective data prepared in connection with mandatory government reports

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1

In his insightful consideration of the same issue in related New Jersey cases, Superior Court

Judge Ralph L. DeLuccia similarly rejected Pilgrim’s Pride’s argument that disclosure would have a

“chilling effect” on future voluntary safety reviews. Rosella v. Pilgrim’s Pride, N. J. Sup. Ct., PAS-L-1141-

05.

or for self-critical analyses. The privilege provides protection where the policy favoring

exclusion clearly outweighs the need of the party seeking the information. Dowling v.

American Hawaii Cruises, Inc., 971 F.2d 423, 425-26 (9th Cir. 1992); Joe v. Prison Health

Services, Inc., 782 A.2d 24, 34 (Pa. Cmwlth. 2001).

The essence of the privilege is the value to the public of continuing the free flow of

the type of information created by the analysis. Consequently, the inquiry focuses on the

public policy requirement, that is, whether disclosure of material generated by a party’s

self-critical analysis will discourage or curtail future such studies. VanHime v. Dep’t of State

supra at 212. In other words, where the party’s fear of potential disclosure of negative

findings will inhibit honest critical assessments, disclosure is disfavored.

Even if the privilege did exist in Pennsylvania, it would not apply to the E & Y

report. Disclosure of the E & Y report will not inhibit the defendant from conducting further

safety studies. Not to critically assess its food safety processes would subject the

defendant to increased risk of unsafe and unhealthy conditions at its plants that could

result in harmful effects to its consumers and its reputation. Hence, there is no overriding

policy in the context of this case favoring exclusion.1

Pilgrim’s Pride vehemently contests that the listeria that may have caused the

injuries in these cases came from its Franconia plant. There is a specific section of the

report entitled “Listeria Incidents at Franconia Location.” Evidence that E & Y had found

positive listeria test results there, though not conclusive, is probative of the plaintiffs’

claims. Failure to take timely corrective action in the face of such evidence is also relevant.

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Given the passage of time, there is no other viable way for the plaintiffs to investigate the

presence of listeria at Pilgrim’s Pride’s Franconia plant. Thus, the plaintiffs’ need for the

information weighs in favor of disclosure.

Work Product Doctrine

The reports generated after counsel’s “engagement letter” present another issue.

Pilgrim’s Pride has invoked the work product doctrine, claiming that any work done by E

& Y after the date of the letter was in anticipation of litigation. Plaintiffs suggest that the

letter was a disingenuous preemptive attempt to shield otherwise discoverable material.

The protective ambit of the work product doctrine extends to materials prepared by

an attorney’s consultant. In re Cendant Corporation Securities Litigation,343 F.3d 658, 662

(3d Cir. 2003). Thus, if E & Y was genuinely engaged to assist Pilgrim’s Pride’s attorney

in anticipation of any litigation arising out of the listeria outbreak, its work product would be

protected. 

Pilgrim’s Pride cannot seriously contend that E & Y’s endeavor was not already a

work in progress when counsel sought to expand the consultant’s role. Drawing the line

between what is work product in anticipation of litigation and what is part of the continuing

safety review may be difficult, but it is unnecessary at this time because plaintiff’s have not

demonstrated a substantial need for the materials. They have not shown how disclosure

could benefit them. 

Were we not ordering production of the report and documents prepared before

October 16, 2002, the calculus may be different. The information contained in the preoutbreak report satisfies the need of the plaintiffs to determine if listeria was present in the

Franconia plant and whether Pilgrim’s Pride knew it. 

Case 2:03-cv-03500-TJS Document 41 Filed 08/30/05 Page 5 of 6
To assure that the line between materials prepared in anticipation of litigation and

those prepared as part of the ongoing review has not been obliterated, Pilgrim’s Pride shall

produce, for in camera review, the E & Y reports and documents prepared after October

16, 2002. At the same time, it shall also submit redacted copies identifying those portions

which it contends were specifically prepared in anticipation of litigation as opposed to those

which were done in the normal food safety review process. In the meantime, it is

unnecessary to determine whether counsel’s “engagement letter” was real or an artifice.

If such a determination becomes necessary after the in camera review of the post October

16, 2002 materials, the parties shall be given an opportunity to be heard.

 S\Timothy J. Savage 

TIMOTHY J. SAVAGE, J.

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