O'REILLY, Ph.D. v. THE INSTITUTE FOR CANCER RESEARCH
2:24-cv-05315
E.D. Pa.Jun 25, 2025Background
- Plaintiff Alana M. O'Reilly filed suit against the Institute for Cancer Research, alleging unlawful sex-based harassment and retaliation.
- During discovery, Plaintiff sought Defendants' response to her administrative complaint filed with the Philadelphia Commission on Human Relations (PCHR).
- Defendants claimed this response was protected by the attorney-client privilege and work product doctrine because it was prepared by outside counsel.
- Plaintiff argued that Defendants could not assert a "good faith" defense to punitive damages under Kolstad v. American Dental Ass’n while withholding privileged information central to their defense.
- Defendants maintained they would not rely on outside counsel's investigation to assert their "good faith" defense, thereby preserving privilege.
- The court was asked to either compel production of the privileged information or preclude Defendants from asserting the "good faith" defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privilege waiver from asserting a "good faith" defense | Defendants impliedly waive privilege by relying on it | No waiver; will not rely on privileged info for defense | No waiver; disclaimer effective to preserve protection |
| Compelling disclosure of attorney-client materials | Must provide access to outside counsel’s investigation | Can assert defense with other, non-privileged evidence | Disclosure not compelled; privilege stands |
| Preclusion from raising "good faith" defense | Preclude defense if Defendants refuse disclosure | Defendants can assert defense without privileged info | Not precluded; Defendants bound by their disclaimer |
| Timing/ripeness of defense and privilege issue | Issue is ripe due to potential use in defense | Issue not yet ripe as defense hasn't relied on privilege | Not ripe; Plaintiff can revisit if Defendants rely on counsel |
Key Cases Cited
- Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999) (establishes standard for "good faith" defense to punitive damages in employment discrimination)
- Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994) (privilege is only waived if attorney-client advice is affirmatively put at issue)
- Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) (privilege is waived by clear intent to rely on advice of counsel for a claim or defense)