IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


WILLIAM GILSON, ) 


) 

Plaintiff, ) Case No. 1:12-cv-00002 

) 

v. ) Judge Mark R. Hornak 

) 

THE PENNSYLVANIA STATE POLICE, ) 


an agency ofthe COMMONWEALTH OF ) 


PENNSYLVANIA, et aI., ) 


) 


Defendant. ) 


MEMORANDUM OPINION 

Mark R. Hornak, United States District Judge 

I. BACKGROUND 

In this civil action the Plaintiff William Gilson, a former Pennsylvania State Trooper, has 

sued the Pennsylvania State Police ("PSP") and certain of its present or former agents for alleged 

wrongful acts committed in connection with the termination of his employment. Following his 

termination, Plaintiff filed a grievance and the matter went to arbitration. In preparation for the 

arbitration hearing, PSP's lawyer (an attorney from the Governor's Office of General Counsel 

("OGC")) generated approximately 28 pages of notes. These included questions she intended to 

ask the witnesses as well as her mental impressions concerning certain aspects ofthe case. 

After Plaintiffs termination was upheld by the arbitrator, this litigation ensued. The 

Defendants are now represented by Robert Willig, Esq., from the Office of the Attorney General 

("OAG"). In connection with its defense of the case, the OAG requested that PSP provide all 

pertinent documentation within its possession. Among the materials produced to OAG were the 

notes which PSP's arbitration counsel had drafted in preparation for the arbitration proceeding. 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 1 of 13
I 

These notes were later inadvertently produced to the Plaintiff on or about December 18, 

2012 as part of discovery in this case. Ten months later, on October 11,2013, Plaintiff's counsel 

utilized four pages of the notes in connection with the deposition of Marc Noce, a former State 

Trooper who was one of the original named defendants in this case. l Mr. Noce was asked about 

the notes but did not know who had authored them. Consequently, Plaintiff's counsel sent an 

interrogatory to PSP on October 21, 2013 inquiring as to the identity of the author. After 

consulting with PSP, the OAG learned that the subject documents were part of the PSP lawyer's 

handwritten notes. 

On October 30, 2103, defense counsel wrote a letter to Plaintiff's counsel identifying the 

documents and asking for their return, along with any other notes of the PSP attorney that were 

in Plaintiff s possession. Plaintiff declined this request, and Defendants thereafter filed a motion 

pursuant to Federal Rule of Evidence 502 andlor Local Rule 16(1 )(D) to get the subject material 

back (ECF No. 60). Plaintiff then filed his response to the motion (ECF No. 62). 

II. 	 STANDARD OF REVIEW 

Rule 502 provides, in relevant part, that, when an inadvertent disclosure of privileged 

material is made in a federal proceeding, the disclosure does not operate as a waiver if: 

(1) 	 the disclosure is inadvertent; 

(2) 	 the holder of the privilege or protection took reasonable steps to prevent 

disclosure; and 

(3) 	 the holder promptly took reasonable steps to rectify the error, including (if 

applicable), following Federal Rule of Civil Procedure 26(b)(5)(BV 

During his tenure with PSP, then Trooper Noce had been assigned to the Internal Affairs Division. He was the 

individual assigned to investigate allegations of misconduct on the part of Plaintiff that eventually led to his 

termination. Although originally named as a Defendant, Mr. Noce was terminated from the case on February 13, 

2012. 

2 Federal Rule ofCivil Procedure 26(b)(5)(8) provides as follows: 

2 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 2 of 13
Fed. R. Evid. 502(b). The analysis actually involves a two-step process: '''[f]irst, it must be 

determined whether the documents in question were privileged or otherwise protected and 

second, if privileged documents are produced then a waiver occurs unless the three elements of 

FRE 502(b) are met.'" Wise v. Washington Cty., Civil Action No. 10-1677,2013 WL 4829227, 

at *2 (W.D. Pa. Sept. 10,2013) (quoting Rhoades v. Young Women's Christian Ass'n ofGreater 

Pittsburgh, Civ. No. 09-261, 2009 WL 3319820, at *2 (W.D. Pa. 2009)) (alteration in the 

original). The disclosing party has the burden of proving that each of Rule 502(b)'s elements has 

been satisfied. Wise, 2013 WL 4829227, at *2 (citing Rhoades, 2009 WL 33319820, at *2). 

Courts in this circuit also consider the following related (and somewhat overlapping) 

factors in determining whether waiver has occurred: (1) the reasonableness of the precautions 

taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the 

number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures 

taken to rectify the disclosure; and (5) whether the overriding interests ofjustice would or would 

not be served by relieving the party of its errors. See Wise, 2013 WL 4829227,at *2 (W.D. Pa. 

Sept. 10,2013) (citing Rhoades, 2009 WL 3319820, at *2 and Smith v. Allstate Ins. Co., 912 F. 

Supp. 2d 242, 247 (W.D. Pa. 2012)); Carlson v. Carmichael, Civil Action No. 10-3579, 2013 

WL 3778356, at *2 (E.D. Pa. July 19, 2013) (citing Fed. R. Evid. 502 Advisory Committee's 

Note; Rhoads Indus., Inc. v. Bldg. Materials Corp. ofAm., 254 F.R.D. 216,219 (E.D. Pa. 2008)). 

I f information produced in discovery is subject to a claim of privilege or of protection as trial-preparation 

material, the party making the claim may notify any party that received the information of the claim and 

the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified 

information and any copies it has; must not use or disclose the information until the claim is resolved; 

must take reasonable steps to retrieve the information if the party disclosed it before being notified; and 

may promptly present the information to the court under seal for a determination of the claim. The 

producing party must preserve the information until the claim is resolved. 

3 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 3 of 13
III. ANAL YSIS 

A. Protected Status 

In this case, the Defendants are claiming protection of the disclosed materials under the 

attorney work product doctrine. It '''shelters the mental processes of the attorney, providing a 

privileged area within which he can analyze and prepare his client's case. '" Shire LLC v. Amneal 

Pharm. LLC, Civil Action No. 2:11--cv-03781 (SRC) (CLW), 2014 WL 1334225, at *1 (D.N.J. 

April 1, 2014) (quoting United States v. Nobles, 422 U.S. 225, 238 (1975) and United Coal Cos. 

v. Powell Constr. Co., 839 F.2d 958, 966 (3d Cir.1988)). The Third Circuit utilizes a two-part 

test for ascertaining whether a document is protected under the work-product doctrine: first, the 

court determines whether litigation could reasonably have been anticipated at the time the 

document was created; second, the court determines whether the document was prepared 

primarily for the purpose of litigation. See Graco, Inc. v. PMC Global, Inc., Civil Action No. 

08-1304 (FLW), 2011 WL 666048, at *18 (D.N.J. Feb. 14,2011) (citing authority). The work 

product privilege is codified at Rule 26(b)(3) of the Federal Rules of Civil Procedure, which 

generally prevents discovery of "documents and tangible things that are prepared in anticipation 

of litigation or for trial by or for another party or its representative ... " absent a showing by the 

requesting party of "substantial need for the materials to prepare its case" and an inability, 

"without undue hardship, [to] obtain their substantial equivalent by other means." Id., at *17 

(quoting Fed.R.Civ.P. 26(b)(3)(A)). 

In this case, Plaintiff does not dispute that the notes in question constitute protected 

material. Although the subject documents are not currently of record, the parties' description of 

the documents strongly suggests that the work product doctrine would apply to the material in 

question. According to the Plaintiff, the subject documents involve approximately 28 pages of 

4 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 4 of 13
handwritten notes generated by PSP's arbitration counsel which consist of the following: (a) 

questions which the attorney intended to ask Plaintiff on cross examination at the arbitration 

hearing; (b) notes of interviews that the attorney conducted with a number of witnesses in the 

case; and (c) notes made on a letter that was addressed to arbitration counsel herself. (See Pl.'s 

Resp. Opp'n Defs.' Mot. Filed Pursuant to F.R.E. 502 or Local Rule 16(1)(D) 2, ECF No. 62.) 

B. Waiver 

If the documents in question are attorney work product, then a Rule 502(b) analysis is 

necessary. There is no dispute with regard to the first Rule 502(b) factor, as both sides appear to 

agree that the disclosure here was inadvertent. 

The second Rule 502 factor requires the Court to consider whether the Defendants took 

reasonable measures to prevent disclosure of the materials in the first place. As to this point, the 

Defendants offer the following averment: 

[T]he OAG took reasonable steps to prevent disclosure. As mentioned above, 

when a suit is filed the OAG retrieves the pertinent documentation from the state 

agency involved. This occurred in the instant case as the OAG received 

documentation from the PSP. When the Plaintiffs discovery request arrived, 

OAG personnel reviewed the documentation page by page to see what was 

discoverable. The handwritten notes have no indicia of authorship or any other 

indication that would have alerted personnel that these notes were privileged as 

opposed to, for example, notes completed by the investigator who completed the 

PSP Internal Affairs Division (lAD) investigation into Plaintiffs misconduct. In 

short, there was nothing obvious in the documentation that would have alerted 

OAG personnel to the privileged nature of these documents. 

(Defs.' Mot. at ~ 7.) 

Initially, the Court must consider whether further record development is appropriate in 

order to assess the Defendants' proffer. In most of the reported cases addressing claw-back 

motions under Rule 502(b), the courts have made rulings following oral argument, see, e.g., Wise 

v. Washington County, 2013 WL 4829227, at * 1; Carlson v. Carmichael, 2013 WL 3778356, at 

*2; 	United States v. Sensient Colors, Inc., Civil No. 07-1275(JHRlJS), 2009 WL 2905474, at *1 

5 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 5 of 13
(D.N.J. Sept. 9, 2009); Peterson v. Bernardi, 262 F.R.D. 424, 426 (D.N.J. 2009), or after 

conducting an evidentiary hearing, see Stewart Title Guar. Co. v. Owlett & Lewis, P.c., 297 

F.R.D. 232, 238 (M.D. Pa. July 18,2013), or with the benefit of an attorney's verified statement, 

see Rhoades v. Young Women's Christian Association of Greater Pittsburgh, Civil Action No. 

09-261, 2009 WL 3319820 *2-3 (W.D. Pa. Oct. 14, 2009). In this case, the Court does not have 

the benefit of a detailed proffer from counselor any sworn statement from the individual who 

actually conducted the document review, nor have the subject documents been submitted to the 

Court for inspection. 

Considering only the motion papers alone, the Defendants have not at this point fulfilled 

the second Rule 502(b) factor. Defendants aver that "OAG personnel" reviewed the documents 

in PSP's file "page by page" in order to determine what was discoverable. As Plaintiff points 

out, however, the Defendants have offered nothing to indicate how defense counselor any 

attorney in the OAG's office supervises his or her subordinates or whether he or she performs a 

final review prior to transmission in order to guard against inadvertent disclosures. This type of 

deficiency was found to trigger a waiver of the attorney-client privilege in Wise, supra. In that 

case, Judge Fischer made the following observations: 

Defendants have presented little evidence about the precautions taken to prevent the 

inadvertent disclosure. Mr. Joyal [the defense attorney] explains that it is the practice of 

his office to scan all documents received in a case in order to easily attach them to emails and court filings. (Docket No. 156, at ~ 7). Because his usual secretary had been on 

vacation at the time the inadvertent disclosure were made, he believes that all the 

inadvertently disclosed documents were e-mailed to Plaintiffs counsel by a substitute 

secretary. (Docket No. 156, at ~ 15). Nothing in his affidavit indicates how he 

supervises his subordinates or whether he performs a final review prior to transmission in 

order to guard against inadvertent disclosures. During oral argument,[ ] Mr. Joyal was 

unable to speak to the general practice of other attorneys in his law firm or at Travelers 

Insurance with respect to preventing inadvertent disclosures. (Docket No. 162, at 16). 

While he represented that in the normal course of events there would be an attorney who 

would review documents before they were sent to opposing counsel, there was no 

attorney with knowledge of the case who reviewed the documents in this instance 

6 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 6 of 13
because the disclosure took place during the holidays, when a number of attorneys and 

staff were out of the office. Id. at 16-17. 

An attorney's responsibilities, however, do not take a holiday. Nothing prevented Mr. 

Joyal from asking another attorney in the office to review what the substitute secretary 

planned to forward to Plaintiffs counsel and to call him (even on his holiday vacation) in 

order to properly vet the disclosure before submission to his opponent. Alternatively, 

nothing prevented him from seeking an extension until after his holiday vacation at which 

time he could have personally reviewed the challenged documents. 

Wise, 2013 WL 4829227, at *2-3 (Nora Barry Fischer, J.). Here, as in Wise, the Defendants' 

proffer provides no guidance as to whether - or to what extent - there was any attorney oversight 

of the document production process. 

Defendants also assert that the documents in question contained neither a designation 

concerning their authorship nor any other clear indicia of attorney work product and, therefore, 

(they argue) the defense should not be blamed for accidentally producing what appeared to be 

discoverable material. The Court does not have before it copies ofthe subject documents, so it is 

hamstrung in any effort to fully and fairly assess this argument. That said, according to the 

Plaintiff, the subject materials apparently included: (a) hand\\Titten notes entitled "Tpr William 

Gilson - Cross"; (b) handMitten notes of an interview with Investigator Noce; and (c) 

handwritten notes on a piece of correspondence addressed to arbitration counsel herself. Plaintiff 

posits (somewhat persuasively) that an attorney reviewing these materials would have (or should 

have) recognized them as actual or at least likely attorney work product. 

Even if Defendants are correct that the subject notes bear no profoundly obvious indicia 

of attorney work product, this does not necessarily help their cause for purposes of a Rule 502(b) 

analysis. In a case fairly analogous to this one, the Eastern District of Pennsylvania held that an 

inadvertent disclosure of privileged documents did not warrant claw-back relief where the 

disclosure was attributable to the attorney's failure to label her own notes as containing 

privileged material. 

7 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 7 of 13
In Carlson v. Carmichael, Civil Action No. 10-3579, 2013 WL 3778356 (E.D. Pa. July 

19, 2013), the court was called upon to decide whether the U.S. Attorney's Office, serving as 

defense counsel, had waived its right to assert the attorney-client and work-product privileges 

with regard to certain documents inadvertently disclosed to the plaintiff during discovery. The 

papers in question consisted of eight (8) pages of handwritten notes which the AUSA originally 

assigned to the case had prepared as a memorialization of an interview that she had conducted of 

one of the defendants. The AUSA who later took over the defense of the case had accidentally 

produced the notes during discovery based on his errant belief that the notes had been generated 

by the defendant himself rather than by counsel. 

In conducting its Rule 502(b) analysis, the court focused on the disputed issue of whether 

the "U.S. Attorney's Office had failed to take reasonable steps to prevent the disclosure of the 

notes in light of the number of documents it had to review, the time it had to review them, and 

other similar, commonsense factors." 2013 WL 3778356, at *2? The court answered this 

question in the affirmative and held, accordingly, that any privilege had been waived. /d. at *3. 

In relevant part, the court noted that: 

the government attorney with initial responsibility for this case[ ] failed to label 

her notes as "confidential" or to identify herself as their author... Moreover, the 

Defendants acknowledge that "[i]t is not known how the notes ended up in [the] 

folder" entitled "Documents from Carmichael," ... and Defendants appear to have 

no information as to whether or how anyone at the U.S. Attorney's Office 

sequestered privileged documents from non-privileged ones. Finally, other 

relevant factors disfavor finding that the U.S. Attorney's Office took reasonable 

precautions here. In particular, the Defendants produced fewer than 600 pages of 

3 Notably, the court placed the burden of proof on the plaintiff on the grounds that H[a] party who claims that waiver 

has occurred 'has the burden of proof as to waiver. '" 2013 WL 3778356, at * 1 (quoting Rhoads Indus., Inc. v. Bldg. 

Material Corp. of Am., 254 F.R.D. 216, 223 (E.D. Pa. 2008». However, courts in our District have placed the 

burden of proof on the party moving for claw-back relief under Rule 502(b). See Wise, 20 I3 WL 4829227, at *2 

("The disclosing party has the burden of proving that each of the three elements of rule 502(b) has been met."); 

Rhoades v. Young Women's Christian Ass'n o/Greater Pittsburgh, Civil Action No. 09-261, 2009 WL 3319820 at 

*2 (W.D. Pa. Oct. 14,2009) (Ambrose, J.) (same) (citing United States v. Sensient Colors Inc., 2009 WL 2905474, 

*3 (D.NJ.2009». 

8 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 8 of 13
documents in February 2013, and counsel had three months to review these 

documents before producing them. 

Carlson, 2013 WL 377836, at *2 (internal citations to the record omitted)(second and third 

alterations in the original). 

The Carlson court considered, but rejected, the defendants' argument that the inadvertent 

disclosure did not stem from a lack of preventative measures but from unusual facts - namely, 

the departure of the original defense attorney from the U.S. Attorney's Office and the transfer of 

the case file to another AUSA. See id. at *3 ("Having to deal with matters in the wake of 

lawyers' moves is hardly unusual, shocking or confusing."). The court observed that subsequent 

defense counsel "never would have produced the notes if any steps had been taken to guard 

against their disclosure, such as marking them as privileged, identifying the author, ensuring that 

they were removed from the folder entitled 'Documents from [Defendant] Carmichael,' or in 

some other way alerting for the need to exercise caution." Id. Moreover, notwithstanding 

defense counsel's representation that he had personally reviewed every document before 

producing them, the court found that this type of review could not constitute a "reasonable step" 

that would prevent waiver in view of the fact that counsel's review had been "rendered 

ineffective before it even began because of the actions of others in his office, actions which left 

him without any reasonable chance of discovering that the notes were privileged." Id. at *3. The 

court in Carlson concluded with the following observation: 

Even though a newly assigned counsel may not have personally dropped the 

proverbial ball, the arrival of replacement counsel cannot afford a party a 

"Mulligan" ... with respect to analyzing whether the party, as opposed to a 

specific lawyer, may claim the privileges' protections. To hold otherwise would, 

bizarrely, reward the turnstile staffing of litigation matters that can hardly be 

something to be encouraged for the fair and expeditious handling of cases. 

2013 WL 3778356, at *3. 

9 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 9 of 13
In this case, the inadvertent disclosure of arbitration counsel's handwritten notes may 

similarly be attributed to the fact that the notes were not sequestered from the rest of PSP's file, 

identified as attorney work product, or otherwise designated as containing protected material. 

Seemingly, here - as in Carlson - the OAG's review of the documents may have been "rendered 

ineffective before it even began." 2013 WL 3778356, at *3. Moreover, unlike the AUSA in 

Carlson, who represented that he had personally reviewed each document prior to its production, 

defense counsel in the case at bar has offered no representation as to any attorney involvement in 

the document production process. Counsel's only representation is that "OAG personnel" were 

involved in reviewing the documents, but there is no proffer as to which personnel reviewed the 

documents or how those individuals are supervised or trained to recognize protected material. 

The third Rule 502(b) factor requires that the Court consider whether the Defendants 

promptly took reasonable steps to rectify the inadvertent disclosure. Although Plaintiff 

complains that the Defendants did not seek retrieval of the subject documents until nearly eleven 

(11) months after their production, this ignores the claim that the Defendants were not earlier 

aware of the specific nature and authorship of the documents. Defendants maintain that it was 

only when the OAG contacted the PSP in October 2013 (after the notes had surfaced during an 

October 11, 2013 deposition and then became the topic of a further discovery request) that the 

Defendants first realized the confidential nature of the subject documents. Defense counsel 

wrote a letter shortly thereafter asking that these materials be returned. On balance, it would 

seem that Defendants acted in a reasonably prompt manner to cure the inadvertent disclosure. 

Defendants posit that consideration of additional factors, such as the number of 

inadvertent disclosures, the extent of the disclosure, and the overriding interests ofjustice weigh 

in favor of the relief they are requesting. They note that this dispute concerns approximately 

10 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 10 of 13
twenty-eight pages of documents out of hundreds of pages that were produced. To date, there 

have been no other known incidents of privileged materials being inadvertently shared. 

Defendants further posit that the interests of justice favor their claw-back request inasmuch as 

the subject notes give the Plaintiff "a window into the inner workings of the defense case and 

how it is likely to proceed." (Defs.' Mot. ~ 10.) These factors cut in Defendants' favor. 

On the other hand, other factors support a finding of waiver. For example, there is no 

indication here that Defendants were under any unusual time constraints in responding to the 

Plaintiff s discovery request such that they were prevented from performing a more thorough 

review of the documents in question.4 Moreover, the production of hundreds of pages of 

documents, though substantial, is not an unusually large amount of discovery. Cf Carlson, 2013 

WL 3778356, at *2 (court noting that one of the factors "disfavor[ing] [a] finding that the U.S. 

Attorney's Office took reasonable precautions" to prevent the inadvertent disclosure of 

privileged material was the fact that the defendants had produced fewer than 600 pages of 

documents and had had three months to review these documents before producing them). 

IV. CONCLUSION 

The issue before the Court lies at the intersection of competing and important 

professional obligations and considerations for the just disposition of litigation. 

On the one hand is the principle that parties and their lawyers have a baseline obligation 

and duty of care in performing their duties, including the identification and segregation of 

documents for production. On that front, the Defendants have not yet placed before the Court a 

sufficient factual record, including the documents themselves, that would permit the Court to 

conclude that reasonable steps had been taken to protect the documents at issue from disclosure, 

4 Neither party has indicated when the discovery request was made, and it is unclear on the present record how much 

time was afforded the OAG in responding to that request. 

11 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 11 of 13
including the nature and degree of lawyer supervision, and the degree of obviousness of the 

protected nature of the documents when they were identified and produced. 

On the other hand, there is no dispute that the production of these documents was 

unintended and inadvertent, that they are almost certainly protected work product, that based on 

the description of the documents, a lawyer looking at them (including Plaintiff s counsel) would 

have at least suspected that they were protected, and that when defense counsel learned about 

that production in the midst of a deposition, he took a reasonable period of time to consider the 

matter and issued a prompt enough demand for their return. The attorney work product doctrine 

embodies an important principle, namely that the work of lawyers is for the sole benefit of the 

interests of their client and is not ammunition for an adversary in litigation, absent the most 

compelling necessity for its production as provided by Fed. R. Civ. P. 26. 5 

In some ways, what is before the Court is an unfortunate combination of a very 

significant slip up by the Defendants and a "gotcha" maneuver by the Plaintiff, particularly when 

it is not contested that the revelation of otherwise protected documents was not intended and the 

receiving lawyer likely should have known that they were protected. The Court therefore 

believes that the proper course here is to permit the Defendants to supplement their submissions 

as to the pending Motion, if they can do so consistent with Fed. R. Civ. P. 11, at the time they 

submit their Motion for Summary Judgment. Plaintiff may respond further in conjunction with 

his Summary Judgment response, and the Court will consider the ultimate disposition of this 

Motion when it hears oral argument on that impending Summary Judgment Motion. 

5 The Court is loath to get into the business of parsing how lawyers should label or mark their meeting or working 

notes, or keep their files, or manage their law offices. From the Court's perspective, when a disclosure is 

inadvertent, and when the documents would appear to a lawyer recipient to at least raise the high likelihood that they 

are protected, the question then becomes whether the procedures in place at the producing law office are so devoid 

of reasonableness that the client of the producing lawyer(s) should properly pay the price for that miscue, by 

allowing the receiving, opposing counsel to retain them. 

12 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 12 of 13
An appropriate Order follows. 

Mark 

~ R. Hornak 

United States District Judge 

Dated: January 30, 2015 

cc: All counsel of record. 

13 

Case 1:12-cv-00002-MRH Document 78 Filed 01/30/15 Page 13 of 13