1

Joseph A. Hirsch, Esq.

Atty. Id. No. 66640

HIRSCH & HIRSCH

110 Bala Avenue

Third Floor

Bala Cynwyd, Pennsylvania 19004

Telephone (610) 660-9955 Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAURIE E. SWEIGARD :

Plaintiff : CIVIL ACTION NO.

: 02-2755

V. :

:

CHOICE SERVICES INTERNATIONAL, :

INC., ET AL :

Defendants :

PLAINTIFF'S SECOND MOTION TO COMPEL

PRODUCTION OF DOCUMENTS

AND FOR ATTORNEYS FEES AND COSTS

1. Plaintiff's First Request for Production of Documents was

served on the Defendants via first class mail on June 20,

2002.

2. On September 6, 2002, Plaintiff filed a Motion to Compel

Answers to Interrogatories and Production of Documents.

3. On September 9, 2002, Plaintiff received Defendants’

objections and partial responses to her interrogatories and

document requests.

4. On September 10, 2002, this Court entered an Order

compelling the Defendants to serve full and complete answers

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 1 of 19
2

to Plaintiff’s interrogatories and to produce all documents

responsive to Plaintiff’s requests within ten (10) days. 

Although the Court denied Plaintiff’s request for attorneys

fees and costs at that time, the Court stated that if the

Defendants failed to timely comply with its Order, Plaintiff

was permitted to renew her request for attorneys fees and

costs and they would be awarded at that time.

5. The Defendants have failed to fully comply with this Court’s

Order dated September 10, 2002, and Plaintiff renews her

request for attorneys fees and costs.

6. The following is a list of the pertinent document requests

served June 20, 2002, and Defendants’ responses thereto:

“6. All documents relating to the defendant’s

investigation of the conduct of Plaintiff and

her termination in or about September through

October 2000.

Response:

“See Defendants’ Answer to Plaintiff’s PHRC

Complaint and the documents attached thereto,

together with the “data and documents” filed

by Defendants with the PHRC pursuant to 16

Pa. Code § 42.43.”

“7. All documents or records in the possession or

control of Defendant concerning any

investigations related to Plaintiff’s

complaints about discrimination or

retaliation.

Response:

“See No. 6 above.”

. . .

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 2 of 19
3

“11. Any and all documents that relate to the

allegations of discrimination and retaliation

made by Laurie E. Sweigard against Defendant.

Response:

“See No. 6 above.”

7. When they served their responses to Plaintiff’s First

Request for Production of Documents, the Defendants raised

no objections to the pertinent requests, and failed to

disclose that they were withholding four documents as

required pursuant to Rule 26(b)(5), yet they failed to

produce, and still refuse to produce four documents

responsive to Plaintiff’s requests.

8. By letters dated September 15, 2002 and September 17, 2002,

Plaintiff’s counsel specified interrogatories and document

requests which had not been adequately answered. (Exhibits A

& B).

9. In the letter dated September 17, 2002 (Exhibit B),

Plaintiff’s counsel specifically requested the production of

a memorandum dated 10/10/00 from Defendants’ CEO, Carolyn

Eberwein, to Defendants Director of Human Resources, Janet

Haag. This memo was referenced in another memo from Janet

Haag to Carolyn Eberwein dated 10/12/00 that was previously

produced by the Defendants. A true and correct copy of the

October 12, 2000 memo from Haag to Eberwein is attached

hereto as Exhibit C.

10. On September 20, 2002, Defense counsel faxed a letter to

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 3 of 19
1 The Defendants have already voluntarily produced to

Plaintiff and the PHRC memos that seem to meet the

descriptions of two of the documents as to which Defendants

now claim the work product privilege: “9/29/00 - 10/3/00 notes

of J. Haley” and “10/12/00 - Haag memo to Eberwein.” These

documents were attached as exhibits to Defendants’ Answer to

the Complaint filed with the PHRC. It is not clear to

Plaintiff if there are additional documents being withheld

4

Plaintiff’s counsel (dated September 19, 2002) supplementing

certain answers and committing to provide certain additional

documents and information. (Exhibit D). In said letter

(Exhibit D), Defendants for the first time objected to

producing said memo dated 10/10/00 under Fed.R.Civ.P.

26(b)(3), asserting that the memo was prepared in

anticipation of litigation. Defendants also identified

three additional documents they were withholding on the same

basis.

11. The Defendants’ belated assertion of the privilege in

defense counsel’s letter dated September 19, 2002 is as

follows:

“Defendants do have certain documents relating to

the problems with Plaintiff, but Defendants object

to the production of these documents under

Fed.R.Civ.P. 26(b)(3) because they were prepared

in anticipation of litigation and plaintiffs have

not shown that they have substantial need for

them. Pursuant to Fed. R. Civ. P. 26(b)(5)

Defendants identify those documents as follows:

9/29/00 - 10/3/00 notes of J. Haley

10/10/00 - Eberwein Memo to Haag

10/12/00 - Haag memo to Eberwein

10/27/00 - Haag notes”

(Exhibit D).1

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 4 of 19
that meet the same description. If these are the same

documents, Plaintiff’s position is that by filing them with

the PHRC as part of their Answer and sending them to

Plaintiff, any alleged privilege was waived.

5

12. The Defendants’ assertion of the privilege is untimely and

contrary to the Order dated September 10, 2002 compelling

production of all documents responsive to Plaintiff’s

requests.

13. Defendants Responses to Requests for Production (received on

September 9, 2002) fail to raise the objection and assert

the privilege as required under Rule 26(b)(5). Defendants

failed to assert the privilege until ten (10) days after

this Court entered an Order compelling production of all

documents responsive to Plaintiff’s requests, only after

Plaintiff pointed out to Defendants that they had failed to

produce one of the documents.

14. Defendants’ assertion of the privilege is further defective

in that it fails to provide an adequate basis on which the

claim of privilege can be evaluated.

15. Accordingly, any alleged privilege has been waived.

16. Even if it is held that the Defendants have not waived the

privilege, Plaintiff disputes the claim that the documents

in question properly qualify as trial preparation materials

under Rule 26(b)(3).

17. Three of the four documents in question predate Plaintiff’s

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 5 of 19
6

termination, and predate the alleged final incident that

resulted in Plaintiff’s termination, accordingly, unless

Plaintiff’s termination was planned even before the final

incident of alleged insubordination, no litigation should

have been foreseeable relating to her termination. The

fourth document, dated 10/27/00, predates the filing of

Plaintiff’s Complaint with the Pennsylvania Human Relations

Commission and the E.E.O.C. If the privilege has not been

waived, Plaintiff submits that in camera review would be

appropriate to evaluate the claim that these documents were

trial preparation materials.

18. Finally, even if it is found that the privilege has been

properly and timely preserved, and that the documents in

question fall within the protection of Rule 26(b)(3),

Plaintiff should be entitled to production of the documents

in question because, there is a substantial need for them.

The documents in question will likely lead to the discovery

of admissible evidence concerning, inter alia, the

Defendants’ true motivation for Plaintiff’s termination,

Defendants’ knowledge of the civil rights laws, Defendants’

knowledge concerning the Plaintiff’s opposition to unlawful

discrimination, and pretext, and Plaintiff is unlikely to

have any other reliable source for such information.

19. If the documents in question relate to the concealment of

the Defendants’ true motivations for Plaintiff’s

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 6 of 19
7

termination, such efforts might evidence an attempt to

perpetrate a fraud on the Court, and do not warrant

protection as Work Product.

20. Plaintiff respectfully submits that this Motion was

necessitated by the Defendants’ failure to comply with her

discovery requests in the first instance, and with this

Court’s Order thereafter.

21. Plaintiff's counsel hereby certifies that he has made a good

faith effort to resolve this discovery dispute with Defense

counsel as required by Fed.R.Civ.P. 37(a)(2)(B) and Local

Rule 26.1(f), however, such efforts have been unsuccessful.

WHEREFORE, the Plaintiff respectfully requests this

Honorable Court to grant her Motion, Order the Defendants to

produce all four of the documents in question, and pay for the

counsel fees and costs incurred in preparing this motion and

Plaintiff’s original motion to compel.

Date: September 25, 2002 

JOSEPH A. HIRSCH, ESQ.

Attorney for Plaintiff

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 7 of 19
Joseph A. Hirsch, Esq.

Atty. Id. No. 66640

HIRSCH & HIRSCH

110 Bala Avenue

Third Floor

Bala Cynwyd, Pennsylvania 19004

Telephone (610) 660-9955 Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAURIE E. SWEIGARD :

Plaintiff : CIVIL ACTION NO.

: 02-2755

V. :

:

CHOICE SERVICES INTERNATIONAL, :

INC., ET AL :

Defendants :

Certificate of Service

I, Joseph A. Hirsch, Esq., hereby certify that on this date,

I served a true and correct copy of the Plaintiff’s Second Motion

to Compel Production of Documents and for Attorneys Fees and

Costs, and Plaintiff’s Memo of Law in support thereof upon Peter

D. Bludman, Esq., counsel for Defendants, at Margolis Edelstein,

The Curtis Center, 4th Floor, Independence Square West,

Philadelphia, PA 19106-3304, via first class mail, postage

prepaid.

Date: 

JOSEPH A. HIRSCH, ESQUIRE

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 8 of 19
Joseph A. Hirsch, Esq.

Atty. Id. No. 66640

HIRSCH & HIRSCH

110 Bala Avenue

Third Floor

Bala Cynwyd, Pennsylvania 19004

Telephone (610) 660-9955 Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAURIE E. SWEIGARD :

Plaintiff : CIVIL ACTION NO.

: 02-2755

V. :

:

CHOICE SERVICES INTERNATIONAL, :

INC., ET AL :

Defendants :

O R D E R

AND NOW, this day of , 2002,

upon consideration of the Plaintiff’s Motion to Compel Production

of Documents and for Attorneys Fees and Costs, it is hereby

ORDERED that the Plaintiff's motion is GRANTED.

Within days after the date of this Order, the

Defendants shall produce the following four (4) documents

identified pursuant to Rule 26(b)(5):

9/29/00 - 10/3/00 notes of J. Haley

10/10/00 - Eberwein Memo to Haag

10/12/00 - Haag memo to Eberwein

10/27/00 - Haag notes”

It is hereby FURTHER ORDERED that Defendant shall pay to

Plaintiff attorneys fees and costs in the amount of $ 

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 9 of 19
incurred in preparing and prosecuting this Motion and Plaintiff’s

first Motion to Compel.

BY THE COURT

 

, J.

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 10 of 19
1 Defendant also sometimes referred to this position as

Quality Assurance Specialist or Program Analyst.

Joseph A. Hirsch, Esq.

Atty. Id. No. 66640

HIRSCH & HIRSCH

110 Bala Avenue

Third Floor

Bala Cynwyd, Pennsylvania 19004

Telephone (610) 660-9955 Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAURIE E. SWEIGARD :

Plaintiff : CIVIL ACTION NO.

: 02-2755

V. :

:

CHOICE SERVICES INTERNATIONAL, :

INC., ET AL :

Defendants :

PLAINTIFF'S MEMORANDUM OF LAW

IN SUPPORT OF

PLAINTIFF’S SECOND MOTION TO COMPEL

PRODUCTION OF DOCUMENTS

AND FOR ATTORNEYS FEES AND COSTS

I. FACTUAL AND PROCEDURAL HISTORY

The Plaintiff, Laurie E. Sweigard, was formerly employed by

Defendants as Quality Assurance Manager.1

During the course of her employment with Defendants, the

Plaintiff became aware of racially discriminatory practices in

the hiring, promotion and compensation of Defendants’ African

American employees. On or about May 18, 2000, Defendants

announced the promotion of four (4) African American employees to

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 11 of 19
positions for which they did not possess the objective

qualifications, and the job openings were not posted internally

in accordance with company policy and practice.

Plaintiff attempted to address her concerns over the

promotions with management, including, inter alia, Regional

Director James Haley, Human Resources Director Janet Haag, and

CEO Carolyn Eberwein on a series of occasions between September

26, 2000 and October 13, 2000. As a result, she was repeatedly

and severely reprimanded by Eberwein.

On October 4, 2000, when Plaintiff had addressed her

concerns directly to Human Resources Director Janet Haag, she was

informed that the promotions were based on the “ethnicity” of the

employees, and labeled the promotions “affirmative action.” Haag

further advised Plaintiff that there had been discussions of

increasing Ms. Sweigard’s job responsibilities and promoting her,

but that now this possibility was being called into doubt because

of her questioning of the aforesaid promotions.

CEO Carolyn Eberwein had inflicted the harshest reprimands

when she learned that Plaintiff had discussed her concerns over

the race based promotions with management and contacted the PHRC.

Ultimately, on October 16, 2000, Defendants fired Plaintiff

for allegedly discussing personal issues during work hours.

On or about October 20, 2000, Plaintiff filed a complaint

with the Pennsylvania Human Relations Commission.

On May 8, 2002, Plaintiff commenced this action alleging

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 12 of 19
race discrimination and retaliation in violation of Title VII of

the Civil Rights Act of 1964 (as amended)(42 U.S.C. § 2000e, et

seq.)(“Title VII”), Section 1981 of the Civil Rights Act of 1866

(42 U.S.C. § 1981)(“Section 1981") and the Pennsylvania Human

Relations Act (“PHRA”).

II. ARGUMENT

A. Defendants Have Violated this Court’s Order or have

Otherwise Waived any Work Product Privilege.

This Court’s Order dated September 10, 2002 required the

Defendants to produce all documents responsive to Plaintiff’s

requests within ten (10) days. Not to withhold documents or to

raise objections. Defendants Response to Plaintiff’s Request for

Production of Documents raised no objections to the pertinent

requests, and failed to disclose that they were withholding four

documents as required pursuant to Rule 26(b)(5). This was in

violation of this Court’s Order, and also violated the

requirements of Rule 26(b)(5), which sets forth the procedure for

claiming the work product privilege. The Defendants waived any

alleged privilege by failing to serve timely responses to

Plaintiff’s Request for Production, necessitating Plaintiff’s

first Motion to Compel. The Defendants further waived any

alleged privilege by failing to object or otherwise claim the

privilege when they finally did serve responses. Accordingly,

the Plaintiff’s present Motion should be granted, and the

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 13 of 19
Defendants should be required to produce the improperly withheld

documents.

Defendants did not disclose that they were withholding

documents until Plaintiff’s counsel notified by letter dated

September 17, 2002 that one of the subject documents had not been

produced. (Exhibit B). It was not until September 20, 2002, when

Defendants had been caught, that they attempted belated

compliance with Rule 26(b)(5) by disclosing the fact that they

were withholding four documents as trial preparation materials

under Rule 26(b)(3).

The procedure for asserting a claim of Work Product

privilege set forth in Rule 26(b)(5) is as follows:

“(5) Claims of Privilege or Protection of Trial

Preparation Materials. When a party withholds

information otherwise discoverable under these rules by

claiming it is privileged or subject to protection as

trial preparation material, the party shall make the

claim expressly, and shall describe the nature of the

documents, communications or things not produced or

disclosed in a manner that, without revealing

information itself privileged or protected, will enable

other parties to assess the applicability of the

privilege or protection.

Even if it were assumed that the Defendants had the right to

object after the Court entered its September 10th Order, the

Defendants’ assertion of the privilege was untimely. Rule

26(b)(5) requires that the disclosure of the fact that the

documents are being withheld must be made “[w]hen a party

withholds” the documents. The Defendants surreptitious

withholding of the documents in violation of the Rule should not

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 14 of 19
be rewarded merely because they made disclosure after they had

been caught.

Defendants have also failed to comply with Rule 26(b)(5) by

failing to “describe the nature of the documents . . . not

produced . . . in a manner that, without revealing information

itself privileged or protected, will enable other parties to

assess the applicability of the privilege or protection.” 

Fed.R.Civ.P. 26(b)(5). It is not sufficient to merely allege

that a memorandum was prepared in anticipation of litigation, as

Defendants have done. See Holmes v. Pension Plan of Bethlehem

Steel Corp., 213 F.3d 124, 138-39 (3d Cir. 2000)(work product

protection not established by allegation that memo prepared in

anticipation of litigation). Initially, the party resisting the

production of documents bears the burden of establishing that the

privilege applies. See Id; George v. Wausau Ins. Co., 2000 U.S.

Dist. Lexis 16813, *4 (E.D.PA November 21, 2000)(Party invoking

attorney client privilege has burden of proving that privilege

was properly invoked).

Accordingly, any alleged privilege has been waived.

B. Even If the Objection to Production of the Documents

and Assertion of the Privilege Were Not Waived, the

Materials Withheld are not Protected Under the Work

Product Doctrine.

Even if the Work Product privilege has not been waived, the

documents at issue are not within the intended scope of the Work

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 15 of 19
Product privilege. In addition, Plaintiff has a substantial need

for the documents. Accordingly, the documents are discoverable.

The Work Product privilege is codified in Rule 26(b)(3) of

the Federal Rules of Civil Procedure. Rule 26(b)(3) provides in

relevant part as follows:

“(3) Trial Preparation: Materials. . . . a party may

only obtain discovery of documents and tangible things

otherwise discoverable under subdivision (b)(1) of this

rule and prepared in anticipation of litigation or for

trial by or for another party or by or for that other

party’s representative (including the other party’s

attorney . . .) Only upon a showing that the party

seeking discovery has substantial need of the materials

in the preparation of the party’s case and that the

party is unable without undue hardship to obtain the

substantial equivalent of the materials by other means. 

In ordering discovery of such materials when the

required showing has been made, the court shall protect

against disclosure of the mental impressions,

conclusions, opinions or legal theories of an attorney

or other representative of a party concerning the

litigation.

The Work Product privilege provides broad protection to the

mental impressions, conclusions and legal theories of attorneys,

prepared in anticipation of litigation. Fed.R.Civ.P. 26(b)(3). 

The Work Product privilege provides qualified protection to

materials, such as notes of witness interviews, prepared in

anticipation of litigation in that they may only be obtained on a

showing of substantial need, and inability to obtain the

substantial equivalent without undue hardship. Fed.R.Civ.P.

26(b)(3).

Materials prepared in the ordinary course of business or for

other non-litigation purposes are not subject to the protection

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 16 of 19
of Rule 26(b)(3). Goosman v. A. Duie Pyle, Inc., 320 F.2d 45 (4th

Cir. 1963). 

In order to qualify for the protection of the work product

doctrine, materials must be prepared in anticipation of imminent

litigation. In the present case, as discussed above, the

Defendants have failed to offer a sufficient description of the

documents in question, however, the dates of three of the four

documents reveal that they predated Plaintiff’s October 16, 2002

termination and predated the final act of alleged

misconduct/insubordination (October 13, 2000) that immediately

preceded her termination. The mere timing of these three

documents diminishes the persuasiveness of Defendants’ bald claim

that they were prepared in anticipation of litigation. The same

reasoning applies to the fourth document, dated 10/27/00, because

it predates the filing of Plaintiff’s Complaint with the

Pennsylvania Human Relations Commission and the E.E.O.C.

Also, the document described by Defendants as “10/10/00 -

Eberwein Memo to Haag” was referenced in a memo previously

produced by Defendants (Exhibit D), and said memo (Exhibit D)

describes the withheld document as a memo “re: Laurie Sweigard’s

allegations.” Although the contents of this October 10th memo

are unknown, the description contained in Exhibit D strongly

suggests its relevance to the claims herein.

Since there is no suggestion that any of these documents

were prepared for or at the direction of counsel, the mere

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 17 of 19
allegation, under these circumstances, that they were prepared in

anticipation of litigation is insufficient to justify a finding

that the work product privilege applies. In the alternative, if

the privilege has not been waived, Plaintiff submits that in

camera review would be appropriate to evaluate the claim that

these documents are trial preparation materials.

Finally, if the Work Product privilege applies, Plaintiff

should still be entitled to the documents because she has a

substantial need for them. Plaintiff anticipates that the

documents in question will provide evidence of Defendants true

motivation for Plaintiff’s termination, Defendants’ knowledge of

the civil rights laws, Defendants’ knowledge concerning the

Plaintiff’s opposition to unlawful discrimination, and pretext,

and Plaintiff is unlikely to have any other reliable source for

such information.

Consequently, the Defendants should be compelled to produce

the documents in question.

III. CONCLUSION.

For the foregoing reasons, Plaintiff’s Motion should be

granted.

Respectfully submitted,

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 18 of 19
Date: 

JOSEPH A. HIRSCH, ESQUIRE

Case 2:02-cv-02755-JCJ Document 10 Filed 09/26/2002 Page 19 of 19