*1 COUNTY, Appellant, MONTGOMERY CORPORATION; Carson
MICROVOTE Inc.; Company, West
Manufacturing Co., Inc. Fire Insurance
chester
No. 98-1923. Appeals, Court States
United
Third Circuit. 26, 1999.
Argued March April 1999.
Filed
Timothy Myers T. (Argued), John M. Elliott, K. Beatty, Krista Brian J. McCor- mick, Jr., Elliott, Reihner, Siedzikowski & Bell, PA, Egan, Blue for Appellant. Klein, Samuel E. Clothier, Robert C. III, Dechert, Rhoads, Price & Philadel- PA, phia, Appellee for Corpora- tion. Reed,
Michael T. (Argued), Smith, Scott McClay, PA, Shaw & Philadelphia, Scott Alexander, Reindl, R. Gayle A. Sommer & Barnard, IN, Indianapolis, Appellee Carson Manufacturing Inc. Company, Carlton, Jr., Ellsworth, Robert T. Wiles Chalphin, PA, Philadelphia, & Appellee Westchester Fire Insurance Inc. GREENBERG, ROTH, Before: ROSENN, Judges. Circuit hours, went and others two ers waited COURT THE OF OPINION polls After voting. without home ROSENN, Judge. Circuit miscalcu- closed, software the MicroVote question important raises appeal This Consequently, the results. lated *3 scope presence regarding to the results gave erroneous officials The defendant attorney-client election reported incorrect which press, (“Car- Company Manufacturing Carson winners. gen- son”) six documents to discover seeks during experienced difficulties After the a member I. Michael by erated election, County offi- the November a Ph.D. holds who Pennsylvania Bar of analyze someone to retain cials decided claims Carson computer science. recommendations and make past elections are discoverable the documents ma- functioning voting properly to secure consultant, rather acting as a was Shamos de- As elections. upcoming for chines Montgomery plaintiff attorney, for than an Waters., Jr., Mont- E. by Thomas scribed United (“County”). The States County Solicitor, County was County gomery District the Eastern for District Court evaluate who could expert for an “looking alia, held, inter agreed and Pennsylvania machines, [the tell performance were created Shamos the documents them, tell wrong with what County] was attorney-client by fixable, and it was County] whether [the however, record, review lege. Our [the or County] whether [the tell Shamos, who to conclude compels us if [the the machines could use County] law firm through his was retained Passarella, Joseph County] wanted to.” acted negotiations, in contract participated Voter Director of County Montgomery and, thus, County’s experts Services, five election contacted discov- precludes the Coun- by who had been recommended We there- of the documents. ery of five Pennsylvania ty Commissioners the district the order of vacate fore only was Shamos Department. State the docu- one of affirm as to part experts. in the list of attorney included ments. the Commonwealth He worked machines, certifying Pennsylvania I. including the MICROVOTE-464. Montgom- 25, 1994, work for price exceed- able to willing May On dollars, experts were Montgomery four County. The other ery million ing four for the Coun- consulting hundred MICRO- purchased nine County not interested Computer Voting Electronic ty- VOTE^164 Units Voting Electronic
and Direct ultimately County The Commissioners (“Mi- Corporation defendant Bruen- Ziesenheim to retain Webb decided croVote”). these manufactured (“Webb Hanson P.C. & ing Logsdon Orkin voting machines. electronic partner. Firm”), of which Shamos is Law County 30, 1996, Montgomery January ma- On County used these Montgomery with agreement into fee entered general elec- 1994 and chines confirming the letter Firm. Webb primary election. the 1995 tions and ac- “This letter agreement states: fee County for first November Montgom- by engagement knowledges for a county-wide the machines time used Bruening Ziesenheim ery County of Webb According to the Coun- multi-page ballot. Hanson, counsel & P.C. Orkin during Logsdon malfunctioned ty, the machines advice on rendering the ballot connection voters scrolled election. When county’s with the relations contractual page, machines to the next proceed voting sys- electronic vendor of present power failures shut down. sometimes later, Board County aat days Two polls. vot- tems.” at the Some long created lines meeting, of Elections County retained attorney who billed County for ser- Law Firm. Webb vices rendered. The paid its fees for Shamos’s services to the Webb Law performed several tasks for the Firm, not directly to Shamos. 1, 1996, On ing day. from MicroVote and Carson. Shamos con- bond on the machines’ performing at a percent performance bond or letter of following day, Shamos met with officials Vote als, which specific voting machines. croVote sent Shamos a draft of croVote credit and conditioning specific positively recommend MicroVote’s ma- ditioned Shamos told Montgomery County, croVote and Carson chines to the options attended a On president problem officials, during available to the level. On February giving information and a positive Shamos caused MicroVote morning of MicroVote on the follow- County the County a one-hundred- 20,1996, recommendation on Mi- At critiqued officials later that which a meeting Carson, unless the malfunctioning meeting between that he would not Shamos sent Pas- proposals. recovery they in a letter to 5, 1996, he received and Micro- to resolve discussed with Mi- propos- day, The Mi- written on February taken at the February lution specifically mentioned that missioner Chairman Mario Mele referred the County’s Firm’s services County’s Consultant.” Elections tion of the *4 lems.” The minutes added that Shamos reported: culties.” The Board tant to ensure there will not County a resolution retaining the Webb Law “has been chosen as a consultant at a rate [4] a consultant. The minutes of the Febru- ary At Shamos as $175.00 day prepare times, was 1996 Board consult. Dr. “[T]he meeting per County officials called Shamos engaging electronic previous recommendations to remedy hour, aas consultant. The minutes consultant. The reso- of Elections called Shamos “the 7, 1996, of Elections for a Shamos will Shamos. election day prob- voting system 22, is hiring a consul- 1996 Board of projected County Com- be a In a letter meeting adopted analyze repeti- diffi- four Other County officials and MicroVote’s sarella, the County’s Director Voting counsel considered Shamos to have been Services, a seven-page letter in which Sha- its counsel. In testimony his delivered at mos is believed to have made his findings hearing before the district court to and recommendations to Montgomery determine if the report Shamos letter, part This which was not leged, Passarella said that County re- record, the district court key is the docu- tained the Webb Law Firm to consider all ment that Carson County seeks and the County’s options, including litiga- protect. has been trying to tion. He referred to Shamos as counsel According to hearing Passarella’s testi- engagement and said that the letter called mony, 1996, in February Shamos and the Webb Law Firm In depo- counsel. County Solicitor negotiated Waters sition, Waters testified that Shamos was Richards, counsel, Dean MicroVote’s acting 1, as the County’s lawyer. A March helped write an addendum to the contract 1996 letter from Richards to Waters stated between County and Montgomery Micro- that Shamos “previously represented the addendum, Vote. which was exe- County” in connection with voting ma- 13, 1996, cuted on March MicroVote dispute. chine agreed provide with 390 additional voting MICROVOTE-464 ma- problems voting with the MicroVote chines for April primary elections. persisted April machines pri- performed mary Afterward, services for Mont- elections. relations be- 12, gomery County March until 1996. tween the grew rancorous. On 1, only 1996, was the Law Firm July Webb' sued the II. contract. an oral breaching allegedly 10, October On dismissed. That suit was A. this diver- County filed
1997, Montgomery District States the United action with sity matter, we hold As a threshold Pennsyl- District Eastern for the Court appeal over this jurisdiction that we County al- complaint, the In its vania. The collat § 1291. to 28 U.S.C. pursuant alia, breach negligence, leged, inter narrow under permits, doctrine eral order contract, fraud. breach warranty, circumstances, appeals ly defined See, § 1291. pursuant orders nonfinal of docu- production request for In its Corp., 337 Loan e.g., Cohen ments, from the sought Beneficial 1221, 545-57, L.Ed. 69 S.Ct. U.S. concerning Dr. report of “[t]he that a (1949). has held This court performance election and/or ma requiring disclosure discovery order other docu- all machines and attorney- by the putatively terial Dr. provided to generated ments and/or ap privileges is work-product client documents”). (“Shamos Shamos” doc order collateral under the pealable docu- the Shamos County asserted Ford Motor trine. In re *5 the under not discoverable ments were Cir.1997). (3d work-product and attorney-client the nor Webb Neither Shamos leges. our us to revisit urges Carson in either County represented the has Firm Because Motor in In re Ford Co. holding suit. of this by prior decisions are the we bound' authority a motion to reconsider 2,1998, filed lack to Carson and the July court On must de panels, we by previous district court and the discovery, decisions compel Operat Internal See that invitation. 1998. On cline August on hearing a held (1997). MicroVote 9.1 Procedures the 24, 1998, court ordered September re Co. re Ford Motor that In maintains docu- Carson six produce to County to im analysis of case-by-case a quires Sha- ments, dubbed “the the court which the facts of privilege under portance comprises: “report” Report.” The mos In In re Ford disagree. case. We each (1) agreement letter fee 1/30/96 ap not did base this court Motor (2) bill for services 2/29/96 facts; underlying on the pealability holding (3) bill for services 3/31/96 policies rather, examined the this court (4) one-page letter from Shamos 2/5/96 Passarella to and the judgment rule the final underlying (5) from Passar- fax sheet cover 2/13/96 work-product privi attorney-client and ella to Shamos Thus, In re at 958-64. 110 F.3d leges. (6) letter from Sha- seven-page 2/20/96 bright-line a Co. established Motor Ford mos to Passarella discovery or from appeals permitting rule order, the district and In its memorandum of content disclosure requiring the ders hired County attorney-client court concluded by privileged putatively consultant, as an as an election privileges. work-product held the court Consequently, attorney. discovery court’s the district In this case pro- were not documents that the Shamos County give to required order attorney-client by tected documents, County which the Shamos that the work- determined The court also attorney- by the protected are contends protect the docu- did product privilege Under work-product privileges. client ments. doctrine, ap- we order collateral County’s ap- discovery jurisdiction over pellate County'appeals from that order. peal order. attorney-client B. “In privilege as follows: a civil matter counsel shall not be competent on We now confront the central issue permitted testify to to confidential com- whether appeal: this client, by to him munications made nor precludes discovery privilege shall the compelled client be to disclose the argues Shamos documents. Carson same, unless either this privilege case is privileged the documents are not upon waived by the trial client.” performed at all times Shamos services (West 1982). § Pa.Cons.Stat.Ann. County, he acted as a consultant and The traditional elements of the attorney legal not as counsel. client privilege identify communica- district agreed. The court may tions be from disclo- prove that the ruled failed (1) in discovery sure are: the asserted the Webb Law Firm were holder of is or sought to legal retained render advice in the form (2) client; person become a to whom pertaining recommendations to the vot- (a) the communication is was made ing machines. The court concluded that court, member of the bar of a or his or did not hire Shamos for the subordinate, (b) her connection purpose securing legal advice and that with this communication is acting him hired an election con- (3) lawyer; the communication relates sultant. The court determined that when a fact of which the in- negotiated an addendum to (a) (b) formed his client without the MicroVote, County’s contract with he was (c) presence strangers purpose than acting as consultant rather an attor- (i) of securing primarily opin- either ney. pri- The court added that Shamos’s (ii) (iii) ion law or services or *6 meetings vate with MicroVote and Carson in some legal assistance and proceeding, were officials inconsistent with the actions (d) purpose not for the of committing a attorney of an an representing adverse (4) tort; crime or and privilege has party potentially and of violated Rule 4.2 (a) (b) been claimed and waived Pennsylvania Rules of Professional client. court, therefore, Conduct. held that Rhone-Poulenc Rorer v. In Inc. Home retained as a consul- Co., (3d Cir.1994). 851, dem. 32 F.3d 862 tant, attorney, not an and that the attor- crucial, in intertwined issues ney-client privilege protect did not case are a this whether Shamos acted as discovery. Shamos documents lawyer when he or created received the We exercise plenary review over documents County sought and whether the discovery reject district court’s order legal services from Shamos. See In re ing claims of (“The Co., Ford Motor 110 at F.3d 965 re Motor 110 at Ford F.3d 966. The must of purpose communications be for the findings District Court’s factual should not advice.”); obtaining legal Yi v. Common they clearly be disturbed unless are erro wealth, Dep’t Transp., Bureau Li of of Brown, neous. United States v. 159 F.3d 214, censing, 603, 166 Pa.Cmwlth. 646 A.2d (3d Cir.1998). 147, However, we 148 have (1994) (“[T]he attorney-client privilege 605 plenary questions review over mixed of relationship demands the in existence of a fact law. Manning, and Jenkins v. 116 attorney an in acting profes which is his 685, (3d Cir.1997). sional a capacity lawyer.”). as These are Because this action diversity questions arises mixed of fact law and over which law, Pennsylvania under apply Pennsyl plenary we we have review. United States Cf. (3d Cir.1991) privilege Jury 641, vania See In Inigo, law. re Grand 925 F.2d (3d 374, Investigation, excep 918 F.2d 379 n. 6 (determining whether crime-fraud Cir.1990). Pennsylvania attorney-client privilege applies has codified the tion to is coun- had been that law). testified If Sha- both and fact question
mixed for the sel from whom as acted mos services, the at- Firm, then legal sought Law the Webb Immediately after implicated. is hired, met on torney-client been had and offi- 1995, the Commissioners with any nor district court Neither settle the to in an effort of MicroVote cers a “consul is what defined Several parties. controversy between Internation Unabridged Webster’s tant.” over Sha- Firm the Webb later days as one consultant Dictionary defines al inform- wrote signature mos’s services or advice professional gives “who (1) a require County would it that or knowledge special the field original amount of full bond engi or physician consulting as a training, acknowledg- (2) MicroVote’s and contract New Internation Third Webster’s neer.” entitled to County will be ment Language, English Dictionary al performance event in the refund full (1966); U.S.M. see also Unabridged, 490 not met. (to are upon) agreed be criteria Co., Mass.App. Ins. v. First State Corp. whatsoever no reference makes The letter (1994) (adopt 115, 117 N.E.2d Ct. operation- malfunctions the technical consultant), definition ing Webster’s but con- systems problems al 420 Mass. part, rev’d and part require- legal County’s aff'd 865, fines itself (1995). Lawyers have N.E.2d any respect with of MicroVote ments knowledge special in and training settlement. pur such are consulted often and law with participated Thereafter, Shamos ar special expertise Many have poses. and MicroVote Waters County Solicitor their skill knowledge enhances eas negotiations in settlement representatives diminish does not lawyers, negotiation to the eventually led legal status. their with agreement addendum drafting set agreement, This counsel. MicroVote’s is person in which Thus, manner document, duly legal a formal forth are services resulting hired sealed, commences attested significance of the utmost are performed statutory statement Pennsylvania’s per- in which capacity determining the *7 a the consideration, forth terms sets Janu- By letter dated engaged. was son settlement, provides also and proposed hired County 1996, Montgomery ary or other proposals writing, no other Shamos, al- Firm, not Law Webb the MicroVote’s Feb- “(except agreements oral They partner. a law he was though from James 15, 1996 memorandum ruary per rate of specific $175 pay a agreed to Shamos) are bind- Dr. Michael Ries F. to the although not hour, arrangement, a fee in out except as set parties upon the profes- legal rate, in hourly common this addendum.” contract and original contemplat- letter engagement sion. agree- with an concludes The addendum per- would Firm the Webb ed was not that MicroVote ment the law services, to referred legal form memo- itsof in violation on advice con- to counsel render firm president, Ries, MicroVote’s from randum County’s vendor with relations tractual Shamos. to uti- called for and systems, voting this addendum drafting and Negotiating and other paralegals, lawyers, lization significant most be to Shamos’s (382A) appears The Webb firm. the law in people last first and It is to service county for Shamos’s billed Law Firm a service scope, typical in its legal the Firm. paid County services, and the to appertain not it does performs; lawyer Micro- Richards, attorney Moreover, and structure electronic engineering or represented Vote, that Shamos wrote once Ne- machines. voting malfunction Waters and Passarella County, and support reject in the dence it. drafting assisting Lay or cre- to We it. gotiating, in people rarely of the addendum to the contract ation draft and negotiate contracts dispute an to resolve the between effort behalf of a governmental entity; County is at the heart and MicroVote would practice constitute the unauthorized Furthermore, lawyer’s a task. of law. gave County advice on how to address County sought legal Shamos’s ser- with predicament its machines despite solicitation, vices prior earlier in a manner calculated reduce the likeli- to Shamos, retaining to of four election con- prolonged litigation. costly hood who attorneys. sultants were not Al- Thus, County only proved not that it though explored retaining a provide Firm engaged Webb Law consultant who was not a member of the important for it to ad- legal services bar, decided to retain vise it and make recommendations con- Thereafter, an attorney. the County with nection its serious dilemma over the sought, performed, and Shamos ser- legal machines; proved it that the ser- election vices, including negotiating a contract he entirely legal. vices rendered were rendering advice. Even if the had They are within the a sea- competence of contemplated utilizing legal Shamos’s particularly soned one familiar attorney, initially acumen when it solicited ser- Pennsylvania’s with election laws. vices, County, notwithstanding some of its officials’ occasional characterizations of may
There be evidence that consultant, as a ultimately had County chose the Law Firm as a Webb perform legal services it. “consultant,” but loose use of the term lawyer legal not alone denude a of his does private Shamos’s meetings Micro- Engaging attorney character. an as a con Vote not suggest do that Sha- solving sultant for a legal advice serious acting lawyer mos was when he problem him strips no more of his prepared or obtained the Shamos docu- than attributes does the consultation with ments. Although Shamos barred problem doctor over medical relieve from meeting MicroVote or Carson offi- the doctor of his medical It is attributes. receiving permission cials without entities, public not uncommon for including companies’ these Pa. Rule of attorneys, see governments, state and local which have .2, Prof. Conduct record contains no appointed attorneys, engage outside evidence that Shamos breached his ethical trial lawyers meeting for advice or for addition, duties. it is not unusual for problems. very difficult or unusual It is potential meet with adversaries law, important practice especially during investigations negotiations. great public county interest matters to a *8 controversy such as a troublesome over an We the district believe expensive highly unsatisfactory but elec it erred when concluded that voting system, county tronic have County prove failed to that Shamos and complete freedom consultation fostered Firm ren Webb Law were retained to by client-attorney privilege. The ser legal der the form of services recom in conjunction vices need not be rendered relating mendations to machine potential litigation qualify with actual or to dispute. We conclude that when Shamos B. privilege. for the 3 Jack Weinstein & or created received the documents A. Margaret Berger, Weinstein’s Federal discover, act seeks to Shamos was (Joseph § M. 503.13[1] Evidence lawyer performing a ser legal as 1997). ed., McLaughlin, sought by Montgomery vices for and Therefore, we hold that negoti- Carson’s contention that Shamos’s contract written communications with Passarella lay ated the consultant does discussion; attorney-client protected by there no evi- are warrant is 304 thought processes, findings, and recom- privileges confi-
lege, “the oldest Ries, by to com- allowing president known mendations dential communications States, MicroVote, v. to of actions that Upjohn mon law.” Co. United disclose a list 677, 383, 389, MicroVote, Shamos, 66 101 conferring 449 S.Ct. after U.S. (1981). privilege The is prior April L.Ed.2d to agreed to take governmental enti- special importance to a primary elections. protecting ty seeking legal advice Generally, “when a client vol ac- rights to an efficient and constituents’ untarily privileged discloses communica voting system. The Webb curate party, attorney] tions to third [with privileged records are also billing Firm’s v. privilege Westinghouse waived.” is ser- reveal the nature they 1414, Republic Philippines, See, Fidelity e.g.,
vices Shamos rendered. (3d Cir.1991). addition, voluntary McCulloch, Maryland & Co. v. Deposit adversary to one’s of documents disclosure (E.D.Pa.1996) 516, (holding 168 F.R.D. protected by work-product privilege to subject records billing privilege. Id. at 1428. waives nature of privilege extent records reveal performed). Accordingly, we services allege Carson does not arguments County’s not address the need Firm, Montgomery County or Webb Law by protected are these five documents portion any of the Shamos disclosed privilege opin- work-product or However, documents, documents. expert. ion a non-testifying processes, findings, thought Shamos’s recommendations, are However, agreement the fee Because the Shamos documents privilege. attorney- privileged. letter is not disclosed, Montgom- were not themselves ar client does not shield fee ery County attorney- did not waive the Investiga re rangements. Jury In Grand client (3d Cir.1980) tion, (holding 631 F.2d attorney-client privilege protect does not probabili arrangements strong
fee absent III. ty implicate that disclosure would client compelling district court’s order activity sought criminal for which client produce the Montgomery Sha- advice). Furthermore, fee agree mos will be vacated with re- documents ment letter not come within the ambit does spect except all documents for the fee Murray work-product privilege, see agreement letter and the remanded case Inc., Stuckey’s 153 F.R.D. for further proceedings consistent with (N.D.Iowa 1993), and of course is not the against this will be taxed opinion. Costs opinion non-testifying expert. of a the appellees. C. GREENBERG, Judge, Circuit Carson contends that the concurring: attorney-client privilege waived the when majority’s disposition I thought processes disclosed concur with the his case, meetings with MicroVote and Carson of this but reach its result on differ- 2,1996. *9 February grounds.1 respect majori- on 1 and claims I ent While view, I again ty’s strong believe there are once waived grounds application at a meet here for the County Election Board 22,1996, I during product on which the work doctrine. conclude that in are allegedly revealed Shamos’s the documents issue Judge Judge join product privileges apply 1. Roth and Rosenn also in under the facts of they opin- of the concurrence because are this case. and the work ion both
305 discovery they product are work also tactics anticipatory litigation? of How produced by expert in consultant antici can one avoid what one has not even antici- pation litigation. of See In re Jury pated? Grand Leonen Johns-Manville, v. 135 (3d 978, 138 (Impounded), F.3d 981 94, Cir. (D.N.J.1990) (“The F.R.D. 96 phrase, 1998); Conoco, Inc. v. Dep’t United States ‘anticipation of litigation’ is incapable of Justice, (3d 724, Cir.1982). 687 F.2d definition.”). precise product
The work
doctrine
a par-
allows
The dilemma is
resolved
turning to
ty to discover material prepared in antici-
the record. See United States v. Rockwell
pation of litigation or for
only
trial
Int’l,
when
1255,
(3d
897 F.2d
Cir.1990)
the requesting party
(“The
has shown a substan-
question whether a document was
tial need for the material and cannot ob-
prepared
anticipation
litigation
is of-
tain the material or
equivalent
else-
ten
matter.”).
a difficult factual
This court
where without
incurring a substantial
defines documents
being
prepared “in
hardship.
26(b)(3);
See Fed. R. Civ. P.
anticipation
litigation” when,
“in light of
Inc.,
Carson v.
48,
Mar-Tee
F.R.D.
50 the nature of the document and the factual
(E.D.Pa.1996).
provides
The rule
particular
situation
case, the docu-
ordering discovery
“[i]n
of such materials ment can be fairly said to have
pre-
been
required
when the
showing
made,
has been
pared or obtained because of
prospect
the court
protect
shall
against
disclosure
of litigation.” In re
Jury
Grand
Proceed-
impressions,
mental
conclusions, opin-
ings,
(3d
798,
Cir.1979).
604 F.2d
We
ions, or legal theories of an
explained
preparer’s
antici-
representative
other
party
of a
concerning pation
litigation
must be objectively rea-
litigation.”
Id. The party asserting
sonable. Martin v. Bally’s Park Place
product protection
work
has the burden of
Casino,
Hotel &
1252,
(3d
983 F.2d
demonstrating that
Cir.1993).
the documents were
“prepared
anticipation of litigation.”
How
prospect
remote a
can the litigation
Conoco, 687
at
730. The fact that the
be
the anticipation
to be “reasonable”?
documents sought for discovery do
in-
A party must show that there existed “an
is,
clude
law,
advice
“as a matter of
specific
identifiable
claim or
liti
impending
provided
irrelevant
they
...
were pre-
gation when the materials
prepared.”
were
pared in anticipation
litigation.”
re
Leonen,