UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

CRAIG ADAMS, Plaintiff, CIVIL ACTION NO. 1:21-cv-00909

V. (CONNER, J.) (SAPORITO, M.J.) HANOVER FOODS CORPORATION, et al., Defendants.

MEMORANDUM

This matter is before the court on the discovery dispute set forth in

Doc. 27; Doc. 31; and Doc. 32 which was referred to us on August 10, 2022.

Many of the issues raised in those communications have been resolved in

a telephonic discovery conference conducted on August 22, 2022. (Doc.

37). The remaining matters relate to issues regarding the attorney-client

privilege. 131 documents were provided to the court for an in camera

review in late October. We conducted a follow-up telephonic conference

with counsel on November 14, 2022, to determine whether the in camera

review was still necessary in light of the recent substantial document

production by the defendant. We were informed that the review is

necessary.

I. Statement of Facts A detailed recitation of the facts is unnecessary as the parties are

familiar with them. The defendant, Hanover Foods Corporation, hired

the plaintiff, Craig Adams, in January 2017 as Vice-President of Quality,

Research, and Development. He held that position until Hanover

terminated his employment in August 2020 for alleged poor performance.

The plaintiff brought this action under Title VII and the Americans with

Disabilities Act as well as its state counterpart under the Pennsylvania

Human Relations Act because of his participation in an Equal

Employment Opportunity Commission investigation into gender and

disability-based discrimination of a former employee of Hanover named

April Richter. Specifically, the plaintiff alleged in the amended

complaint that the defendant, Jeff Warehime, the CEO of the defendant

Hanover, asked the plaintiff to fire several employees, including April

Richter because, in Warehime’s opinion, she was not doing a good job.

(Doc. 20 § 7). When the plaintiff expressed his dismay about Ms.

Richter’s termination as well as his participation in the EEOC

investigation which followed, he alleges that defendant Warehime began

targeting the plaintiff for termination. In addition, the plaintiff has

relevant information. Moreover, discovery need not be confined to items

of admissible evidence but may encompass that which appears

reasonably calculated to lead to the discovery of admissible evidence.

Clemens v. N.Y. Cent. Mut. Fire Ins. Co.,

(M.D. Pa.

2014). When the Court is presented with a motion to compel discovery,

[t]he burden is on the objecting party to demonstrate in specific terms why a discovery request 1s improper. The party objecting to discovery must show that the requested materials do not fall within the broad scope of relevance or else are of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.

(citations, internal quotation marks, and alterations omitted).

III. Discussion In the defendants’ privilege log and their Doc. 31 submission, the

defendants contend that the information requested is protected by the

attorney-client privilege as they contain emails to and from defendants’

in-house general counsel, Stephanie Kleinfelter. (Doc. 31, at 3). A review

of the papers reflects that Ms. Kleinfelter is also the defendant’s Vice

President of Human Resources. The plaintiff argues that Ms. Kleinfelter

is in the email threads, or the emails are written from and/or to her, but

they are unrelated to the objective of giving or seeking legal advice. (Doc.

27, at 5). “Because the attorney-client privilege obstructs the truth-finding

process, it 1s construed narrowly.” Westinghouse Elec. Corp. v. Republic

of the Philippines,

, 1423 (3d Cir. 1991). For the attorney-

client privilege to attach to a communication, “it must be ‘(1) a

communication (2) made between privileged persons (3) in confidence (4)

for the purpose of obtaining or providing legal assistance for the client.”

Inre Teleglobe Comme'ns Corp.,

(3d Cir. 2007) (quoting

Restatement (Third) of the Law Governing Lawyers § 68 (2000)

[hereinafter, “Restatement (3d) Lawyers”}). “Privileged persons’ include

the client, the attorney(s), and any of their agents that help facilitate

attorney-client communications or the legal representation.” Id. at 359

(citing Restatement (3d) Lawyers § 70). “A communication is only

privileged if it is made ‘in confidence.” Id. at 361 (citing Restatement (3d)

Lawyers § 68). “[I]f persons other than the client, its attorney, or their

agents are present, the communication is not made in confidence, and the

privilege does not attach.” Id. at 361.

“As a general matter, the privilege is not destroyed when a person

other than the lawyer is present ata conversation between an attorney

and his or her client if that person is needed to make the conference

possible or to assist the attorney in providing legal services.” Miller v.

Haulmark Transp. Sys.,

(E.D. Pa. 1984). “These

exceptions are consistent with the goal underlying the privilege because

[this] type of disclosure is sometimes necessary for the client to obtain

informed legal advice.” Westinghouse, 951 F.2d at 1424. “Where a person

who happens to be an attorney is not acting in that capacity, the privilege

does not attach,” and “[c]lommunications between an attorney and client

which relate to business rather than legal matters, do not fall within the

protection of the attorney-client privilege.” Carhartt, Inc. v. Innovative

Textiles, Inc.

, 116 (E.D. Mich. 2019) (quoting Michigan

First Credit Union v. Cumis Ins. Soc., Inc.,

, at *2 (E.D.

Mich. July 5, 2006)). The documents at issue here consist mostly of email messages to

and from Ms. Kleinfelter.1 Our review of the emails where the

1 There is a small group of correspondence and documents (00061 — 00067) from outside counsel to Ms. Kleinfelter which are privileged.

defendants assert a privilege demonstrates that they consist mainly of

business communications and not requests for legal advice or legal

assistance to the defendant. A fair reading of the emails suggests that

the senders to Ms. Kleinfelter: Randall Culp, Vice President Frozen

Operations; Gary Knisely, Executive Vice President; and Shannon

Wallen, Corporate QA Manager, were providing to Ms. Kleinfelter, either

individually and to someone else employed by the defendant, emails to

and from the plaintiff or other emails in which the plaintiff was a

recipient from either the senders named above or someone else affiliated

with the defendants. In other emails, the senders discussed the various roles the

individuals played within each department as well as the business of

Hanover. Those emails also contain matters that fell under the umbrella

of Ms. Kleinfelter’s role as Vice President of Human Resources and not

as general counsel as they contained general personnel matters. Where

an attorney who also held a position as Senior Vice President of Human

Resources Operations and who received requests for advice related to

ordinary human resources issues and not legal issues, those

communications were not protected by the attorney-client privilege.

Burke v. Cumulus Media, Inc.,

, at *2 (E.D. Mich. Mar.

16, 2017). Nonetheless, the documents Stamped? 00042 — 00046, 00049 —

00055, 00062 — 00067, and 00130, consist of documents wherein legal

advice is requested or provided and the defendants’ objections thereto

will be sustained. Eight pages of documents (00034 - 00041) which

concern the preservation of records regarding April Richter show the

plaintiff listed among the recipients of the emails from Ms. Kleinfelter.

Regardless, we will sustain the objection and declare them (00034 -

00041) privileged as they provided legal advice. All the remaining

documents consist of emails where the privilege is asserted, but we find

that they neither request nor provide legal assistance and those

objections will be overruled. Furthermore, some of those emails show the

plaintiff as a being copied on them (i.e., 00121 - 00128).

Additionally, without describing the remaining documents

specifically by stamped number, there were some objections made by the

defendants that the subject documents were not produced because the

2 The descriptor, “HANOVER. PRIV_” preceded the numbers of each page.

defendants asserted that the requests were outside the scope of the

requested documents. Some of those documents are relevant while

others may have only tangential relevance to the issues. Nevertheless,

we will overrule those objections and direct that they be produced under

the liberal discovery policy of the Federal Rules of Civil Procedure.

An appropriate order follows.

U.S. Magistrate Judge

Dated: November 18, 2022