JOHN J.

DOUGHERTY,
Plaintiff,
v.
PEPPER HAMILTON LLP, et al.,
Defendants.
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COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
CIVIL ACTION - LAW
FEBRUARY TERM, 2013
NO. 00848
ORDER
AND NOW, this _____ day of __________________, 2014, upon consideration of
Defendants Motion for Summary Judgment Based On Judge Raus Decision Unsealing the FBI
Affidavit, and any opposition thereto, IT IS HEREBY ORDERED that the Motion is
GRANTED. Judgment is hereby entered in favor of Defendants and against Plaintiff.
BY THE COURT:
________________________________
, J.
Case ID: 130200848
27 MAY 2014 05:59 pm
L. OWENS
Control No.: 14053283
DECHERT LLP
By: Robert C. Heim (Pa. 15758)
Michael L. Kichline (Pa. 62293)
William T. McEnroe (Pa. 308821)
Catherine V. Wigglesworth (Pa. 314557)
Cira Centre
2929 Arch Street
Philadelphia, PA 19104-2808
(215) 994-4000 (phone)
(215) 994-2222 (facsimile)
robert.heim@dechert.com
michael.kichline@dechert.com
william.mcenroe@dechert.com
catherine.wigglesworth@dechert.com Attorneys for Defendants
JOHN J. DOUGHERTY,
Plaintiff,
v.
PEPPER HAMILTON LLP, et al.,
Defendants.
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COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
CIVIL ACTION - LAW
FEBRUARY TERM, 2013
NO. 00848
DEFENDANTS MOTION FOR SUMMARY JUDGMENT BASED ON JUDGE RAUS
DECISION UNSEALING THE FBI AFFIDAVIT
For the reasons set forth in the accompanying Memorandum of Law, Defendants
respectfully move for summary judgment based upon the Honorable Lisa M. Raus decision that
the FBI Affidavit relating to Plaintiff that was filed as a summary judgment exhibit in the
Defamation Action was a public document. Judge Rau specifically held that FBI Affidavit was
not confidential, the Defendants were permitted to disclose it, and that Plaintiffs claims to the
contrary have no legal support, and therefore issue preclusion forecloses Plaintiffs claims in this
case. See Dougherty v. Phila. Newspapers LLC, et al., March Term 2009, No. 04790 (Com. Pl.
Phila. Cnty.).
Case ID: 130200848
Control No.: 14053283
2
Respectfully submitted,
Dated: May 27, 2014 /s/ Robert C. Heim
Robert C. Heim (Pa. 15758)
Michael L. Kichline (Pa. 62293)
William T. McEnroe (Pa. 308821)
Catherine V. Wigglesworth (Pa. 314557)
DECHERT LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104-2808
(215) 994-4000 (phone)
(215) 994-2222 (facsimile)
robert.heim@dechert.com
michael.kichline@dechert.com
william.mcenroe@dechert.com
catherine.wigglesworth@dechert.com
Attorneys for Defendants Pepper Hamilton LLP,
Amy B. Ginensky, Michael E. Baughman,
Peter M. Smith, and Raphael Cunniff
Case ID: 130200848
Control No.: 14053283
DECHERT LLP
By: Robert C. Heim (Pa. 15758)
Michael L. Kichline (Pa. 62293)
William T. McEnroe (Pa. 308821)
Catherine V. Wigglesworth (Pa. 314557)
Cira Centre
2929 Arch Street
Philadelphia, PA 19104-2808
(215) 994-4000 (phone)
(215) 994-2222 (facsimile)
robert.heim@dechert.com
michael.kichline@dechert.com
william.mcenroe@dechert.com
catherine.wigglesworth@dechert.com Attorneys for Defendants
JOHN J. DOUGHERTY,
Plaintiff,
v.
PEPPER HAMILTON LLP, et al.,
Defendants.
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COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
CIVIL ACTION - LAW
FEBRUARY TERM, 2013
NO. 00848
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS
MOTION FOR SUMMARY JUDGMENT BASED ON JUDGE RAUS
DECISION UNSEALING THE FBI AFFIDAVIT
Case ID: 130200848
Control No.: 14053283
1
MATTER BEFORE THE COURT
Motion of Defendants Pepper Hamilton LLP (Pepper Hamilton), Amy B. Ginensky,
Michael E. Baughman, Peter M. Smith, and Raphael Cunniff (collectively the Individual
Defendants and together with Pepper Hamilton Defendants) for Summary Judgment Based
On Judge Raus Decision Unsealing the FBI Affidavit.
STATEMENT OF THE QUESTION PRESENTED
Should this Court grant summary judgment in favor of Defendants where the Honorable
Lisa M. Rau of this Court has conclusively determined that the FBI Affidavit was a
public document that was permissibly disclosed in the related Defamation Action, and
where Judge Raus decision precludes Plaintiffs claims in this case?
Suggested Answer: YES.
INTRODUCTION
This case risesand fallswith Plaintiffs sole theory of wrongdoing: Defendants
whose law firm previously represented Plaintiffdisclosed a purportedly confidential yet
publicly filed FBI affidavit of probable cause relating to Plaintiff (the FBI Affidavit) in a
related litigation and, in doing so, injured Plaintiffs reputation. In the related case, however, the
Honorable Lisa M. Rau has now ruled, among other things, that [the FBI Affidavit] was
publicly available for approximately 5 years on Pacer, the federal courts docketing system,
which provides online public access to federal court filings, and Defendants were free to take it
off Pacer and use it in their pleadings.
1
Judge Rau also ruled that Plaintiff failed to show that
Pepper Hamilton obtained the affidavit improperly through its prior representation, failed to
show it was protected by the attorney-client privilege, and failed to show that any confidence
between Plaintiff and Pepper Hamilton was broken. Based on Judge Raus ruling, Plaintiffs
1
See Dougherty v. Philadelphia Newspapers, March Term 2009, No. 04790, Order Unsealing
FBI Affidavit (Com. Pl. Phila. Cnty. April 28, 2014) (emphasis added), attached as Ex. 1.
Case ID: 130200848
Control No.: 14053283
2
claims in this case are now barred under the doctrine of issue preclusion and, therefore, the Court
should grant summary judgment in favor of Defendants.
FACTUAL BACKGROUND
Plaintiff is a well-known Philadelphia union leader who was investigated by the federal
government for various alleged wrongdoings, some of which involved Donald Gus Dougherty,
Jr. or his business, Dougherty Electric. Pepper Hamilton (but none of the Individual Defendants)
represented Plaintiff for a period of time in connection with the federal investigation. Pepper
Hamiltons representation of Plaintiff ended in February 2007 when Plaintiff retained new
counsel to represent him in the ongoing investigation.
A. Pepper Hamilton Acquires the FBI Affidavit From a Public Docket and Uses
It to Support a Motion for Summary Judgment in the Defamation Action
In 2009, Plaintiff commenced a defamation action by writ of summons against the former
publisher of The Philadelphia Inquirer and individual journalists (collectively, the Inquirer
defendants). See Dougherty v. Phila. Newspapers LLC, et al., March Term 2009, No. 04790
(Com. Pl. Phila. Cnty.) (Defamation Action). Other than identifying the action as one for libel
or slander, the writ did not disclose the factual or legal basis for the suit. In early 2011, Pepper
Hamilton began representing the Inquirer. Plaintiff knew that Pepper Hamilton had undertaken
the representation of the Inquirer defendants. In fact, Pepper Hamilton and one of the Individual
Defendants entered their appearance in March 2011, and served a Rule to File Complaint upon
Plaintiff to learn factual basis for the lawsuit.
In defense of the Defamation Action, Defendants reviewed the federal criminal docket
relating to Donald Gus Dougherty, who was indicted and charged with acts relating to
Case ID: 130200848
Control No.: 14053283
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Plaintiffreferred to in the indictment as IBEW Local Official #1.
2
Plaintiffs identity as
IBEW Local Official #1 in the Donald Dougherty criminal case has been publicly known and
in the public record since at least early 2008. On April 11, 2008, the Honorable Eduardo C.
Robreno of the United States District Court for the Eastern District of Pennsylvania held a public
hearing to determine whether documents filed in the Donald Dougherty criminal case, which
mentioned or discussed Plaintiff, should be made publicly available. See Transcript of Oral
Argument, United States v. Dougherty, No. 07-CR-361-1 (E.D. Pa. April 11, 2008), attached as
Ex. 3. Plaintiffs then-attorney, Henry Hockeimer, Esquire, had requested that all such
documents be removed or restricted from the district courts online docket. See id. at 8:21-11:2.
Finding that restriction of documents relating to Plaintiff was unwarranted, Judge Robreno
denied the request, stating:
John Doughertys connection or possible connection [to the
Donald Dougherty case] . . . was disclosed in the affidavit, and it
was litigated openly in this Court for . . . three or four hours one
day[.] . . . So, the one interest that is being protected [by sealing
documents relating to John Dougherty] is no longer at issue
because its already out in the open.
Id. at 7:6-19 (emphasis added). Hence, Judge Robreno specifically ordered that
certain documents in the Donald Dougherty matter should be unsealed and made
publicly available. See Dougherty, No. 07-CR-361-1, Order at 2 n.3 (Doc. No.
2
The charges include (1) assisting IBEW Local Official #1 in making a fraudulent application
for insurance coverage, (2) selling the same union official a condominium in Wildwood, New
Jersey for less than fair market value, and (3) completing renovations to the officials
Moyamensing Avenue home for less than fair market value. See United States v. Dougherty, No.
07-CR-361-1, Indictment at 1319 (Doc. No. 1) (E.D. Pa. June 26, 2007), attached as Ex. 2; see
also United States v. Dougherty, No. 07-CR-361-1, 2008 U.S. Dist. LEXIS 105430, at *3 (E.D.
Pa. Dec. 30, 2008) (Mr. [Donald] Dougherty . . . bribed a union official by completing work on
the officials home at no cost. He assisted the same union official in fraudulently putting the
union presidents niece on [Dougherty Electrics] health insurance policy.).
Case ID: 130200848
Control No.: 14053283
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60) (E.D. Pa. April 11, 2008), attached as Ex. 4.
3
As part of the review of the Donald Dougherty criminal docket, Defendants reviewed the
FBI Affidavit and concludedconsistent with Judge Raus opinion discussed belowthat the
document was a public document because it had been on a public federal docket and available at
the federal courthouse for nearly five years. As its relevance to the Motion for Summary
Judgment is not questioned, Defendants included the FBI Affidavit as an exhibit. See Ex. 1
(Plaintiff initiated this civil charge of defamation against [the Inquirer Defendants] for making
statements about an active federal criminal investigation involving him. The existence of such
an investigation is critical to the merits of the case.).
B. Plaintiff Alleges Pepper Hamilton and the I nquirer Defendants Conspired to
Publicize the FBI Affidavit
In February 2013, following Judge Mosss denial of Plaintiffs motion to disqualify
Pepper Hamilton in the Defamation Action, Plaintiff brought the instant suit for breach of
fiduciary duty and breach of contract against Defendants, who remained counsel of record in the
Defamation Action as a result of the denial of Plaintiffs disqualification motion. Plaintiffs sole
theory of wrongdoing against Defendants is that Defendants disclosed the FBI Affidavit as a
summary judgment exhibit in the Defamation Action. See Complaint, Ex. 5 49-52. In
particular, Plaintiff alleges:
49. On Monday, December 10, 2012one day before the
court-ordered oral argument on Doughertys disqualification
motion, at approximately 4:15 pm, Pepper, through its lawyers,
Ginensky, Baughman, Smith, and Cunniff, publicly filed a motion
for summary judgment (filed on December 10, 2012; accepted for
filing on December 11, 2012) (Motion). A true and correct copy
of this Motion is not attached to this Complaint because the
3
Indeed, to this day, numerous documents that are publicly available on the Donald Dougherty
criminal docket make explicit reference to Plaintiff. See, e.g., Dougherty, No. 07-CR-361-1,
Doc. Nos. 22, 23, 24, 26, 27, 31, 32, 38, 48, 61, 74.
Case ID: 130200848
Control No.: 14053283
5
Motion contains documentation that is confidential and is at
present under seal.
50. In direct and manifest disregard of Peppers fiduciary and
contractual duties owed to Dougherty as a former client of Pepper,
Peppers publicly filed Motion included, as Exhibit A, a copy of
the FBI Affidavit that was prepared when Pepper represented him
in the above discussed investigation by the federal government.
51. The contents of Peppers Motion thereafter became the
basis of a December 12, 2012 front-page article published by PMN
in The Philadelphia Inquirer and PMN (Digital) on Philly.Com,
Peppers present clients, that smeared and harmed Plaintiffs
reputation. A true and correct copy of the December 12
publication is attached hereto and incorporated herein as Exhibit
D.
52. In particular, the December 12, 2012 article published by
PMN and PMN (Digital) to smear Dougherty relies almost
exclusively on the contents of the FBI Affidavit that Pepper
included as Exhibit A to its Motion that was accepted for public
filing on December 11, 2012.
Id. (emphasis added).
4
From this allegedly wrongful disclosure, Plaintiff alleges that he has suffered reputational
harm:
86. As a result of the fiduciary breaches by Pepper and its
lawyers, some of which were done in conspiracy with PMN and
PMN (Digital) to deliberately harm Plaintiff, Pepper has blackened
Plaintiffs personal and professional reputations . They have
exposed Dougherty to public hatred, contempt and ridicule.
87. The defendants herein by and through their collusion and
conspiratorial actions, have also ascribed to Plaintiff improper,
immoral and illegal conduct, and also, among other things (a)
convey the false impression that Plaintiff has engaged in
substantial and continuous criminal wrongdoing; (b) convey the
false impression that Plaintiff accepted bribes; (c) convey the
false impression that Plaintiff is unfit, unable or lacking the
requisite honesty and integrity to be the Business Manager of
4
Plaintiff has alleged no other wrongful conduct, and has alleged no disclosure of any client
confidential information.
Case ID: 130200848
Control No.: 14053283
6
IBEW, Local 98; (d) detract from Plaintiffs respect and
effectiveness in his many professional, civic and charitable
activities; (e) subject Plaintiff to severe emotional distress, mental
anguish, embarrassment, and humiliation; (f) interfere with
Plaintiffs personal, family and professional lives; and (g) cause
Plaintiff a loss of standing in the community and in his
profession.
88. Moreover, as a direct and proximate result of the
defendants unlawful and improper conduct as discussed in the
foregoing paragraphs, Plaintiffs reputation and good name have
been and continue to be harmed, and he has suffered and continues
to suffer other injuries and damage.
Id. 86-88 (emphasis added).
Thus, the essential nub of Plaintiffs complaint in this case is that Defendants breached
their fiduciary duties by conspiring with the Inquirer defendants to defame Plaintiff by
publicizing the allegations in the FBI Affidavit, and thereby harmed Plaintiffs reputation. See
id. 49-52, 86-88.
C. Judge Rau Issues a Binding Adjudication That the FBI Affidavit Is Public
and Its Use Is Proper
Upon remand from the Superior Court earlier this year, the Honorable Lisa M. Rau was
assigned to the Defamation Action and was presented with Plaintiffs Motion to Strike All
Mentions of Wrongly-Filed Affidavit of Probable Cause For Search Warrant In Defendants
Motion for Summary Judgment (Mot. To Strike), attached as Ex. 6. In the Motion to Strike,
Plaintiff argued that the FBI Affidavit is confidential and lawfully cannot be filed of record
absent seal protection. See Pls Mem. In Supp. Mot. To Strike at 3. Plaintiff further argued that
Pepper knew that the FBI Affidavit had been wrongly-filed, and, based on its ethical, legal, and
moral obligations owed to Dougherty, Peppers former client, should not have been used or
included in Defendants Motion for Summary Judgment. . . . [I]n light of their past attorney-
client relationship with Plaintiff in the same matters related to the FBI Affidavit, Pepper was
Case ID: 130200848
Control No.: 14053283
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ethically required not to act upon the information from the FBI Affidavit, as they were aware that
it was substantially-related to the subject matter of their prior representation of him. Id. at 7-8.
In denying Plaintiffs motion to strike, Judge Rau rejected each of Plaintiffs arguments
and held that the FBI Affidavit was public, that it did not contain client confidential information,
that there is no evidence that Pepper Hamilton obtained the FBI Affidavit in violation of the
attorney-client relationship, and that no confidence between Plaintiff and Pepper Hamilton was
broken:
[The FBI Affidavit] was publicly available for approximately 5
years on Pacer, the federal courts docketing system, which
provides online public access to federal court filings, and
Defendants were free to take it off Pacer and use it in their
pleadings. . . . Plaintiff argues without supporting evidence that it
should be stricken because it was improperly filed in federal court.
However, once the government has released information through a
court filing, properly or not, it is a matter of public record fit for
use in future court filings. . . . The Plaintiffs argument that the
Affidavit should be stricken owing to the attorney-client
relationship is similarly unconvincing, because Plaintiff has shown
no evidence that Defendants counsel, Pepper Hamilton LLP,
obtained it improperly through its previous representation of
Plaintiff nor that it was protected by attorney-client privilege since
it was written by the federal government about Plaintiff and
publicly available for years. No confidence between Plaintiff and
Pepper need have been broken in order for Pepper or Defendants to
have obtained the Affidavit and no evidence to that effect has been
shown.
See Dougherty v. Philadelphia Newspapers, March Term 2009, No. 04790, Order Unsealing FBI
Affidavit (Com. Pl. Phila. Cnty. April 28, 2014) (emphasis added), Ex. 1.
Plaintiff moved for reconsideration of Judge Raus decision, which was denied on May 5,
2014. In support of the denial of reconsideration, Judge Rau wrote a lengthy and well-reasoned
opinion which reinforces her holding that the FBI Affidavit was a public document as a matter
of law, and she rejected Plaintiffs accusation that the Court improperly disclosed the FBI
Affidavitjust as Plaintiff accuses Pepper Hamilton of doing here:
Case ID: 130200848
Control No.: 14053283
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Plaintiff goes so far as to falsely suggest that this Court improperly
disclosed private, privileged federal documents. . . . [Plaintiff]
failed to make the required showing to overcome the presumption
that Court proceedings are public. The document was publicly
available on the federal court docket for nearly 5 years and not
sealed. He fails to provide legal support for his argument that once
the document is made public in court filings others are not free to
report on it or use it to defend themselves.
See Dougherty v. Philadelphia Newspapers, March Term 2009, No. 04790, Memorandum
Denying Reconsideration (Com. Pl. Phila. Cnty. May 5, 2014) (emphasis added), attached as Ex.
7.
5
Based on Judge Raus decision which forecloses Plaintiffs claims in this litigation,
Defendants move for summary judgment, and separately move the Court to stay these
proceedings pending resolution of this motion.
6
5
In an obvious attempt to run an end-around Judge Raus decision in the Defamation Action,
Plaintiff has filed a petition in federal court to order the sealing of the FBI affidavit on the Court
of Common Pleas docket. See Ex. 8. The Honorable Gene Pratter of the United States District
Court for the Eastern District of Pennsylvania has set a hearing on Plaintiffs petition for June 5,
2014. Plaintiffs desperate and meritless attempt to have a federal court order this Court to seal
its own records, however, has no bearing on the preclusive effect of Judge Raus decision.
Indeed, Plaintiffs actions have only served to bring more attention to the FBI Affidavit, which
has now been published in its entirety by major media outlets. See Victor Fiorillo, Here Is the
FBI Document Johnny Doc Hoped Youd Never See, Philadelphia Magazine (April 29, 2014),
http://www.phillymag.com/news/2014/04/29/fbi-document-johnny-doc-2006-search-warrant-
affidavit/, attached as Ex. 9.
Moreover, while the Superior Court disagreed with Judge Moss and held that disqualification of
Pepper Hamilton in the Defamation Action was appropriate under Pennsylvania Rule of
Professional Conduct 1.9(a) (substantially related representations), Plaintiffs claims in this
action are based solely on his allegation of disclosure of the publicly-available FBI Affidavit,
and therefore only Rule 1.9(c) (disclosure of generally known information) is implicated.
Thus the Superior Courts decision is unrelated to Plaintiffs claims here.
6
Defendants submit that resolution of this motion will moot the need to resolve the parties
pending discovery disputes or engage in the ten depositions of various Pepper Hamilton
attorneys that Plaintiff has noticed.
Case ID: 130200848
Control No.: 14053283
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LEGAL STANDARD
Summary judgment is proper where there is no genuine issue of any material fact as to a
necessary element of the cause of action. Pa. R. Civ. P. 1035.2(1). A proper grant of
summary judgment depends upon an evidentiary record that either (1) shows the material facts
are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of
action or defense, and therefore, there is no issue to be submitted to the jury. Biemacki v.
Presque Isle Condominiums Unit Owners Assn, 828 A.2d 1114, 1115-16 (Pa. Super. 2003)
(quoting Grandelli v. Methodist Hosp., 777 A.2d 1138, 1143-44 (Pa. Super. 2001)).
A claim for breach of fiduciary requires the plaintiff to prove: (1) that a past
attorney/client relationship existed which was adverse to a subsequent representation by the law
firm of the other client; (2) that the subject matter of the relationship was substantially related;
(3) that the member of the law firm acquired knowledge of confidential information from or
concerning the former client, actually or by operation of law; and (4) the former client was
damaged thereby. See In re Estate of Walter C. Pew, Deceased, 655 A.2d 521, 545-46 (Pa.
Super. Ct. 1994); Romy v. Burke, May Term 2002, No. 01236, 2004 Phila. Ct. Com. Pl. LEXIS
15, at **5-6 (Com. Pl. Phila. Cnty. Dec. 28, 2004). Where there are no allegations that
defendant . . . engaged in any misconduct, summary judgment is properly granted. See Lamm v.
Lenfest, May Term 2009, No. 02232, 2011 Phila. Ct. Com. Pl. LEXIS 206, at *29 (Com. Pl.
Phila. Cnty. Jan. 22, 2011) (Bernstein, J.), affd, No. 1203 EDA 2011, 2012 Pa. Super. LEXIS
4663 (Pa. Super. Ct. Oct. 16, 2012).
A claim for legal malpractice based on breach of contract requires the plaintiff to prove:
(1) the existence of a contract, including its essential terms; (2) breach of a duty imposed by the
contract; and (3) resultant damages. See Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super. Ct.
2002).
Case ID: 130200848
Control No.: 14053283
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ARGUMENT
Judge Raus decision is binding on Plaintiff and precludes Plaintiff from arguing that
Pepper Hamiltons disclosure of the FBI Affidavit was improper. Rule 1.9(c) of the
Pennsylvania Rules of Professional Conduct permits the disclosure of generally known
information about a former client, and Judge Raus opinion that the FBI Affidavit was a public
document and did not contain any client-confidential information precludes any argument that
the FBI Affidavit was not generally known. Because the disclosure of the FBI Affidavit was
permissible as a matter of law, Plaintiff cannot maintain an action for breach of any fiduciary or
contractual duty, and summary judgment should therefore be granted.
I. ISSUE PRECLUSION PREVENTS RELITIGATION OF COMMON ISSUES
Issue preclusion, or collateral estoppel, prevents a party from relitigating an issue if the
issue was previously litigated and determined by a valid and final judgment on the specific issue
in question. See Foster v. Mut. Fire, Marine & Inland Ins. Co., 676 A.2d 652, 661 (Pa. 1996)
(a final judgment forecloses relitigation in a later action involving at least one of the original
parties, of an issue of fact or law which was actually litigated and which was necessary to the
original judgment (quoting Clark v. Troutman, 502 A.2d 137, 138 (Pa. 1985)).
Pennsylvania courts apply issue preclusion if the following requirements are met: (1) the
issues in the two actions are sufficiently similar and sufficiently material to justify invoking the
doctrine; (2) the issue was actually litigated in the first action; and (3) a final judgment on the
specific issue in question was issued in the first action. See Commonwealth v. Holder, 805 A.2d
499, 502 (Pa. 2002). A final judgment includes any prior adjudication of an issue in another
action that is determined to be sufficiently firm to be accorded conclusive effect. Id. at 503
(citing Restatement (Second) of Judgments 13 cmt. g); see also Restatement (Second) of
Case ID: 130200848
Control No.: 14053283
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Judgments 13 cmt. e (A judgment may be final in a res judicata sense as to a part of an action
although the litigation continues as to the rest.).
II. UNDER CONTROLLING AUTHORITY, JUDGE RAUS DECISION MUST BE
GIVEN PRECLUSIVE EFFECT
Under the standards set forth by the Pennsylvania Supreme Court for the application of
issue preclusion, Judge Raus denial of Plaintiffs Motion to Strike the FBI Affidavit must be
given preclusive effect. As discussed above, Judge Rau made several findings that are fatal to
Plaintiffs claims here. Specifically, Judge Rau held that:
The FBI Affidavit is a public document, and was publicly available for
approximately 5 years on Pacer, the federal courts docketing system[.] See Ex.
1.
The Inquirer defendants, represented by Pepper Hamilton, were free to take [the
affidavit] off Pacer and use it in their pleadings. Id.
Plaintiff failed to prove that Pepper Hamilton LLP[] obtained [the FBI Affidavit]
improperly through its previous representation of Plaintiff[.] Id.
Plaintiff also failed to prove that the FBI Affidavit was protected by attorney-
client privilege since it was written by the federal government about Plaintiff and
publicly available for years. Id.
Moreover, Plaintiff failed to prove that Pepper Hamilton broke any confidences
between Plaintiff and Pepper Hamilton. See id. (No confidence between
Plaintiff and Pepper need have been broken in order for Pepper or Defendants to
have obtained the Affidavit and no evidence to that effect has been shown.).
Each of these findings forecloses Plaintiffs claim in this case: that Defendants acted
improperly by disclosing the FBI Affidavit. To the contrary, as Judge Rau held, the FBI
Affidavit was a public document, and Plaintiff fail[ed] to provide legal support for his argument
that once the document is made public in court filings others are not free to report on it or use it
to defend themselves. See Ex. 7 at 5.
Accordingly, Judge Raus findings (1) directly overlap with Plaintiffs contention in this
case, (2) the issues were briefed and litigated before Judge Rau, (3) and Judge Raus decision is
Case ID: 130200848
Control No.: 14053283
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final and she has denied Plaintiffs motion for reconsideration. Plaintiff is therefore precluded
from arguing that the FBI Affidavit was a confidential document that could not be disclosed, and
his claims fail as a matter of law.
III. UNDER THE RULES OF PROFESSIONAL CONDUCT, PEPPER HAMILTON
WAS PERMITTED TO DISCLOSE THE FBI AFFIDAVIT
Judge Raus opinion in the Defamation Action reinforces the conclusion that the
disclosure of the FBI Affidavit was consistent with the Rules of Professional Conduct.
Specifically, Rule 1.9(c) of the Pennsylvania Rules of Professional Conduct allows a lawyer
who has formerly represented a client to use information relating to the representation to the
disadvantage of the former client . . . when the information has become generally known[.] Pa.
R.P.C. 1.9(c).
It is axiomatic that a document available on the public docket fits squarely within this
Rule. For example, in Cohen v. Wolgin, No. 87-2007, 1993 U.S. Dist. LEXIS 9040 (E.D. Pa.
June 23, 1993) (Hall, M.J.) (on remand from the Hon. Louis Pollack), the court held that an
attorney may properly use information contained in the pleadings and exhibits filed in previous
litigation against his former clients. Id. at *3. The Cohen court reasoned that, even before the
advent of electronic docket access, any pleadings filed are accessible to the public simply by
going to the clerks office and requesting that copies be made. Id. at *10. Accordingly, the
court concluded that information that is contained in the pleadings filed in prior state or federal
litigation . . . is generally known within the meaning of Rule 1.9(c). Id. at *10-11.
The courts holding in Cohen is consistent with the Restatement (Third) of Law
Governing Lawyers, which provides that information is generally known if it is contained in
public-record depositories or through publicly available electronic indexes:
Confidential client information does not include information that is
generally known. . . . Whether information is generally known
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depends on all circumstances relevant in obtaining the information.
Information contained in books or records in public libraries,
public-record depositaries such as government offices, or in
publicly accessible electronic-data storage is generally known if
the particular information is obtainable through publicly available
indexes and similar methods of access.
Restatement (Third) of Law Governing Lawyers 59 cmt. d.
Moreover, the United States Supreme Court has made clear that once the government
releases information in a court file (whether it should have or not), it is a public record and its
use cannot lawfully be restrained. See Fla. Star v. B.J.F., 491 U.S. 524, 536 (1989) (when police
unlawfully and mistakenly provided name of rape victim to a newspaper, newspaper could not be
punished for publishing the name); Nebraska Press Assn v. Stuart, 427 U.S. 539, 567-68 (1976)
(if a preliminary hearing is not closed to the public, even though it could have been, press may
report what happens during the hearing and cannot be restrained after the fact); In re Charlotte
Observer, 921 F.2d 47, 50 (4th Cir. 1990) (reversing trial court order prohibiting publication of
the name of a person identified in open court as the target of a grand jury); Star Telegram, Inc. v.
The Honorable Jeff Walker, 834 S.W.2d 54, 57 (Tex. 1992) (The law cannot recall information
once it is in the public domain.).
Because Judge Rau has heldconsistent with the foregoing authoritythat the FBI
Affidavit was a public record, and that conclusion is binding on Plaintiff, the FBI Affidavit is
generally known as a matter of law, and Plaintiff cannot premise a claim for breach of
fiduciary duty or for breach of contract on its use by Defendants. Summary Judgment should
therefore be granted in favor of Defendants and against Plaintiff.
Case ID: 130200848
Control No.: 14053283
14
RELIEF REQUESTED
For the foregoing reasons, Defendants respectfully request that Summary Judgment be
granted in favor of Defendants and against Plaintiff.
Respectfully submitted,
Dated: May 27, 2014 /s/ Robert C. Heim
Robert C. Heim (Pa. 15758)
Michael L. Kichline (Pa. 62293)
William T. McEnroe (Pa. 308821)
Catherine V. Wigglesworth (Pa. 314557)
DECHERT LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104-2808
(215) 994-4000 (phone)
(215) 994-2222 (facsimile)
Attorneys for Defendants Pepper Hamilton LLP,
Amy B. Ginensky, Michael E. Baughman,
Peter M. Smith, and Raphael Cunniff
Case ID: 130200848
Control No.: 14053283
CERTIFICATE OF SERVICE
I, William T. McEnroe, do hereby certify that on this, the 27th day of May, 2014, I
served a true and correct copy of the foregoing on all counsel of record by filing via the Courts
Electronic Case Filing (ECF) system and that the documents are available thereon for viewing
and downloading.
Dated: May 27, 2014 /s/ William T. McEnroe
William T. McEnroe (Pa. 308821)
DECHERT LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Tel: 215-994-4000
Fax: 215-994-2222
william.mcenroe@dechert.com
Case ID: 130200848
Control No.: 14053283