IN RE: ONEJET (2020)

MEMORANDUM OPINION

Defendant, Robert Lewis, moved for the disqualification of the Robert O Lampl Law Office (the “Lampl Firm”) as counsel to the plaintiffs, Woody Partners, et al.¹ Plaintiffs opposed the request, and the Court conducted a closed evidentiary hearing on October 22, 2019 where both sides presented witnesses and documentary evidence focusing on a 30-minute phone call between Lewis' agent, Brandon Otis, and Attorney Robert Kunkel of the Lampl Firm. After the hearing, Lewis filed a Motion to Seal Transcript and Exhibit A to October 22, 2019 Hearing (the “Motion”),² seeking to have both the hearing transcript and an email communication offered as Plaintiffs' Exhibit A (together, the “Materials”) kept under seal.³ Plaintiffs oppose the request to seal.⁴ After conducting a hearing on the Motion, and in consideration of the Court's concurrent Memorandum Opinion denying the Motion to Disqualify, the Court finds no basis to seal the Materials and will deny the Motion.

I. BACKGROUND

The following facts are those germane to the Motion. A complete recitation of all facts involving these parties can be found in the Memorandum Opinion on the Motion to Disqualify which is incorporated by reference.

Lewis was an investor in OneJet, Inc., a regional air transportation provider.⁵ When Lewis failed to receive “financial results” from OneJet, he directed Otis, his personal chief financial officer, to investigate the company's financials.⁶ Over several months, Otis engaged in a series of communications and meetings with OneJet's executives to obtain clarity on the company's operations.⁷ During his investigation, Otis compiled a “timeline” of events detailing his efforts to obtain financial information from OneJet and its chief executive officer, Matthew Maguire.⁸

By August 2018, OneJet unexpectedly shuttered its business operations.⁹ In response, several creditors commenced an involuntary bankruptcy proceeding against OneJet,¹⁰ prompting this Court to enter an order for relief under chapter 7 of the Bankruptcy Code.¹¹ Another group, consisting of OneJet investors, retained the Lampl Firm in an effort to recoup their lost investments by pursuing claims against those who marketed and sold OneJet securities. Mark Aloe was among those investors. Aloe was aware that Otis had “a timeline and other documents that could be helpful” in a potential lawsuit and he encouraged the Lampl Firm to talk with him.¹² Aloe also invited Lewis to join their impending litigation.¹³ Eager for more information and a chance to add additional clients, Kunkel, an associate at the Lampl Firm, immediately contacted Lewis and Otis.¹⁴

Lewis was acquainted with many investors represented by the Lampl Firm and he authorized Otis to speak with Kunkel because he wanted to assist them by sharing information.¹⁵ Lewis also wanted Otis to assess whether the Lampl Firm or another attorney should be hired to pursue his own claims involving OneJet.¹⁶

Following an exchange of emails, Kunkel and Otis had a 20 to 30 minute phone call on October 1, 2018 (the “Call”).¹⁷ According to Otis, the call focused on Kunkel's search for “information relative to the Maguires' business activity, financial results, past investigations and the significant work” done by Lewis and Otis to track it all down.¹⁸ Although Otis did not take notes during the Call, he relayed information to Kunkel from the timeline covering the following topics:¹⁹

• Robert Lewis's acquisition of OneJet equity interests;

• Inquiries into OneJet financial positions;

• Follow up inquiries into OneJet operations and financial results;

• Meetings between [Otis] and Matthew Maguire;

• Meetings between Board of the Allegheny County Airport Authority (“Airport Board”) members and Matthew Maguire;

• Meetings between Airport employees and Matthew Maguire;

• A timeline of [Otis'] investigation of the operations of OneJet during 2018;

• Requests for copies of documents obtained from Matthew Maguire;

• Detail regarding email and text exchanges with Matthew Maguire;

• Information regarding a letter of inquiry and demand by Attorney McGrievy; and

• A request for actual copies of documents.20

Despite a willingness to talk, Otis refused to provide copies of the documents referenced during the Call, citing a lack of permission from Lewis and suggested that they “might need a formal request or subpoena” before releasing anything to the Lampl Firm.²¹ The response surprised Kunkel, who up to that point had encountered no resistance from OneJet investors to his document requests.²² Ultimately, Lewis and Otis never provided any documents to the Lampl Firm.²³

Shortly after the Call ended, Kunkel summarized the discussion in an email sent to other Lampl Firm attorneys working on the investor lawsuit.²⁴ Although Otis testified that the email is factually confused in several respects,²⁵ it is still contemporaneous evidence of Kunkel's impression of the Call.

Plaintiffs eventually filed suit in state court against Lewis, Maguire, and several others.²⁶ The Complaint contains allegations consistent with the OneJet information supplied by Otis, and it accuses Lewis of materially aiding alleged violations of state securities laws by the other defendants.²⁷ The state court action was removed to the United States District Court for the Western District of Pennsylvania,²⁸ and ultimately transferred to this Court for further disposition in light of OneJet's pending chapter 7 case.²⁹ A subsequent Amended Complaint now asserts three claims against Lewis for violations of Sections 501 and 503 of the Pennsylvania Securities Act and aiding and abetting liability under common law principles.³⁰ According to the Amended Complaint, Lewis allegedly played a “key role” soliciting investors for OneJet and stands accused of making material misrepresentations during a time when he knew OneJet was not financially viable.³¹ Plaintiffs also claim that Lewis's involvement was an incentive for others to invest because he allegedly personally guaranteed a OneJet loan from the Allegheny County Regional Development Authority and used his position on the Airport Authority Board to steer a favorable grant to OneJet.³² The plaintiffs contend that the Airport Authority's action was touted as an “approval” of OneJet's operations and served as a marketing tool to attract additional investment.³³ Each of the defendants, including Lewis, moved to dismiss the Amended Complaint, and those matters are currently under consideration by the Court.

Lewis timely moved to disqualify the Lampl Firm under Rule 1.18 of the Pennsylvania Rules of Professional Conduct, contending that as a prospective client, he shared non-public and significantly harmful information that precludes the Lampl Firm from representing an adverse interest in substantially the same matter. Plaintiffs opposed the request, and the Court conducted a one-day evidentiary hearing where both Otis and Kunkel testified, and 11 exhibits were introduced into evidence. Among the exhibits was Kunkel's October 1 email, marked as Exhibit A, which summarized the Call. During the hearing, Otis' testimony focused on the information he provided to Kunkel from his timeline. Otis also pointed to several paragraphs in the Complaint that allegedly contain information that plaintiffs could only have obtained from the Call.³⁴

Following the evidentiary hearing, Lewis filed the Motion seeking to keep the Materials under seal. Plaintiffs opposed the request and the Court conducted a hearing to consider the matter. This matter is now ripe for adjudication.

Contemporaneously with the release of this Memorandum Opinion, the Court issued its Memorandum Opinion on the Motion to Disqualify which denied Lewis' request to disqualify the Lampl Firm upon a finding that the firm did not receive significantly harmful information about Lewis.

II. JURISDICTION

This case was referred to the Court through an Opinion and Order issued by United States District Judge Marilyn J. Horan on June 19, 2019 upon a finding that it is “related to” a case arising under title 11 of the United States Code.³⁵ As a “related to” proceeding, this Court has authority to exercise jurisdiction over the subject matter and the parties under 28 U.S.C. §§ 157(a), (c), 1334, and the Order of Reference entered by the United States District Court for the Western District of Pennsylvania on October 16, 1984. Moreover, the Motion to Disqualify (and by extension, the Motion) implicates the Court's inherent authority to regulate the conduct of attorneys appearing before it.³⁶

III. POSITIONS OF THE PARTIES

Lewis contends the Materials should not be made available on the public docket for three reasons. First, he argues the Materials reference communications between Otis and Kunkel that are subject to the attorney-client privilege and constitute confidential commercial information worthy of protection under section 107(b)(1).³⁷ Second, Lewis contends the Materials contain scandalous information that should be sealed under section 107(b)(2) because they establish what he knew about OneJet, Inc., and when he knew it.³⁸ Lastly, he asks the Court to redact the materials to prevent public disclosure of privileged information.³⁹

Plaintiffs oppose the request and deny that any privileged communications were revealed at the hearing because Otis was not seeking legal assistance when he communicated with Kunkel. They also allege that none of the Materials contain confidential commercial information, nor are the documents scandalous or worthy of redaction.⁴⁰

IV. DISCUSSION

With limited exception, section 107(a) mandates that the dockets of a bankruptcy court and the papers filed therein are public records which are open to examination.⁴¹ The exclusions to the general rule are found in sections 107(b) and (c), which authorize the Court to restrict access to protect (1) the name of a minor child;⁴² (2) an individual's personally identifying information;⁴³ (3) “a person with respect to scandalous or defamatory matter contained in a paper filed in a case under this title;”⁴⁴ or (4) “an entity with respect to a trade secret or confidential research, development, or commercial information.”⁴⁵ As observed by a leading bankruptcy treatise, “[a]ny limitation on the public's right of access, however, must be viewed as an extraordinary measure that is warranted only under rare circumstances.”⁴⁶ The reviewing judge must “carefully and skeptically review sealing requests to insure that there really is an extraordinary circumstance or a compelling need.”⁴⁷ A party who seeks to keep a record under seal bears “the burden of establishing through evidence that the information should be protected.”⁴⁸ Provided that adequate justification exists, the Court may enter any order which justice requires to protect the estate or applicable entity.⁴⁹

A. Confidential Information

Lewis first contends the Materials must be sealed because they contain confidential commercial information under section 107(b)(1). For this purpose, commercial information is defined as information that would cause “an unfair advantage to competitors by providing them information as to the commercial operations of the debtor.”⁵⁰ Citing case law from other jurisdictions, Lewis contends that materials subject to the attorney-client privilege, including attorney-client communications, qualify for protection as confidential commercial information.⁵¹ While a court may justifiably exclude privileged documents from public disclosure under certain circumstances, this is not one of those cases.

To merit protection under section 107(b)(1), a party must show that the commercial information is indeed confidential. Lewis has not carried his burden in this regard. Otis provided information to the Lampl Firm knowing that it would be used by the plaintiffs in a future lawsuit, even if Lewis did not join them as a party.⁵² With this in mind, neither Otis nor Lewis imposed any type of restriction on the Lampl Firm's use of the information. Moreover, much of the information referenced in the Materials is already in the public domain. Lewis concedes that many items discussed during the Call appear in the Complaint and Amended Complaint,⁵³ yet he made no effort to redact or restrict these documents. It was also known that Otis compiled a “timeline” detailing his efforts to investigate OneJet's financials since Lewis shared this information with Aloe long before the lawsuit was filed.

Lewis also failed to show how public disclosure of this information creates an unfair advantage. The Court concurrently denied his request to disqualify the Lampl Firm because the information exchanged during the Call was not significantly harmful.⁵⁴ As a result, Lewis' adversaries – the plaintiffs and their counsel – already possess the information in the transcript. The Court also predicted that discovery into these areas was likely fair game and should be anticipated. It is therefore unclear what public or competitive interest is served by restricting disclosure of this information at this late stage.

Assuming the information remained confidential and attorney-client communications deserve protection under section 107(b)(2), Lewis still has not proven that the privilege can attach to the Call. The attorney-client privilege protects from disclosure “confidential communications made between attorneys and clients for the purpose of obtaining or providing legal assistance to the client.”⁵⁵ Under Pennsylvania law,⁵⁶ the privilege will attach to a communication if the following elements are present:

(1) the asserted holder of the privilege is or sought to become a client;

(2) the person to whom the communication was made (a) is a member of the bar of a court, or his or her subordinate, and (b) in connection with this communication is acting as a lawyer;

(3) the communication relates to a fact of which the attorney was informed (a) by his client; (b) without the presence of strangers, (c) for the purpose of securing primarily either (i) an opinion of law, or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and

(4) the privilege has been (a) claimed and (b) not waived by the client.57

Not all communications between an attorney and a client are protected. Rather, it is the nature of the exchange that matters. If the communication was not made for the purpose of obtaining legal advice or assistance, it is not privileged.⁵⁸ The privilege also does not extend to facts incorporated within the communication:

[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, “what did you say or write to the attorney?” but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.59

Any party claiming the privilege “must present record evidence ․ and sufficient facts to bring the communication at issue within the narrow scope of the privilege.”⁶⁰

After considering the nature and substance of the Call, the Court cannot conclude that its primary purpose was to obtain legal services, a legal opinion, or assistance in a legal proceeding. Otis admits there was no stated purpose for the call, and Kunkel was primarily focused on obtaining details about OneJet and the Maguires.⁶¹ And while Otis claims he communicated with Kunkel, in part, to assess whether Lewis should hire the Lampl Firm,⁶² there is no objective evidence to support this contention. Otis agreed to speak with the Lampl Firm without any pretext of an attorney-client relationship and the ensuing email exchange does not mention a potential engagement.⁶³ Otis also admittedly took no notes during the Call and it appears he did not ask any questions.⁶⁴ He made no inquiry into the firm's legal strategy, nor did he seek its opinion on the range of possible outcomes. He also did not ask about the firm's staffing, fee structure, or how litigation expenses might be paid. In short, Otis made no effort to obtain the basic information Lewis might need to evaluate the merits of retaining the Lampl Firm.⁶⁵ And unlike a typical client, Otis declined to produce documents referenced during the discussion,⁶⁶ suggesting instead that “a formal request or a subpoena” might be required.⁶⁷ These circumstances are far different from the cases cited by Lewis where the attorney-client privilege was presumed to exist.⁶⁸

From this record, it is clear that the primary purpose of the Call was not to obtain legal assistance for Lewis, but to supply the timeline and other factual information to assist his friends and acquaintances with the prosecution of their claims.⁶⁹ And Lewis supplied the information knowing that it would be used in litigation even if he did not retain the Lampl Firm. Under these circumstances, the attorney-client privilege cannot attach to a transcript discussing the Call and thus does not constitute confidential commercial information worthy of protection from public disclosure, either through the sealing of the entire document or a limited redaction. Lewis similarly cannot assert the privilege as to Exhibit A, and because plaintiffs have not attempted to protect the document (as attorney work-product or otherwise), it is not excludable under section 107(b)(1).

B. Scandalous Materials

The Court next considers whether the Materials should be sealed under section 107(b)(2) as scandalous matter. The term “scandalous” is undefined by the Bankruptcy Code, leaving courts to derive their own meaning. Within this Circuit, however, there is a dearth of case law on the subject, suggesting that parties either do not regularly encounter scandalous materials or the courts need little assistance discerning what is or is not “scandalous.”⁷⁰

Outside our Circuit, courts have taken different approaches to describe scandalous material. Some rely on the definition of “scandalous” used under Federal Rule of Civil Procedure 12(f) which includes “any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.”⁷¹ Courts relying on this standard are generally “reluctant to deem something as ‘scandalous’ unless it can be shown that no evidence in support of the allegation would be admissible.”⁷² Others consider it necessary to examine the context within which the challenged materials were offered.⁷³ If the material is not overtly scandalous in the manner by which it was produced, it should not be excluded from the public record.⁷⁴ Still other courts utilize the common, ordinary meaning of the term.⁷⁵ The United States Court of Appeals for the Ninth Circuit considers material scandalous if it is “disgraceful, offensive, [or] shameful” but it does not require proof that an item is untrue, potentially untrue, or irrelevant to the court proceeding.⁷⁶ Whatever parameters are used, most agree that a filing does not fall within the section 107(b)(2) exception just because it may damage a person's reputation.⁷⁷

Lewis claims the Materials are scandalous because they help establish a claim for relief against his co-defendants, which in turn, facilitates an aiding and abetting claim against him.⁷⁸ Acknowledging that plaintiffs already possess this information, Lewis claims it would be “even more scandalous for there to be a public transcript” of what he knew and when he knew it.⁷⁹

Regardless of the definition the Court chooses to apply, the Materials cannot be considered scandalous because they are relevant to the claims and defenses in this case. By his own admission, Lewis concedes that evidence of “what [he] knew and when he knew it is one of the key issues in this case[.]”⁸⁰ The parties will likely pursue discovery and present trial evidence in the same areas discussed on the Call. It is also likely the parties would have pursued these inquiries irrespective of whether the Call or the subsequent evidentiary hearing ever occurred. The public has an interest in accessing documents which properly come before the Court and which are relevant to its adjudication.

Lewis also failed to show that the Materials contain untrue or potentially untrue information or rise to the level of being disgraceful, offensive, or shameful. Otis and Kunkel both testified at the hearing, yet nothing in the Motion suggests that either made erroneous or misleading statements. And although Otis quibbled with the accuracy of a few lines from Exhibit A, the discrepancies are nominal and nothing in the communication seemingly impugns Lewis' reputation. To the contrary, the Materials suggest that Lewis was concerned about OneJet's operations and instructed Otis to investigate further, representing actions a reasonably prudent investor would be expected to undertake.

Scandalous materials should be readily apparent on their face. Implausible, unproven, irrelevant, and immaterial allegations leveled against an individual solely to disparage their character may have no place in the Court's public docket. Yet the information Lewis seeks to shield falls far short of this mark. Without sufficient grounds for relief, the Court will deny Lewis' request to seal under section 107(b)(2).

V. CONCLUSION

In light of the above, the Court finds that Lewis has not sustained his burden of showing that the Materials should be protected from public disclosure in any form, and the Motion will be denied. This opinion constitutes the Court's findings of fact and conclusions of law in accordance with Fed. R. Bankr. P. 7052. The Court will issue a separate order consistent with this opinion.

ORDER

This matter is presently before the Court upon the Motion to Seal Transcript and Exhibit A to October 22, 2019 Hearing (the “Motion”) filed by Defendant, Robert Lewis and the Response to Motion to Seal the Transcript filed by the plaintiffs, Woody Partners, et al.¹ For the reasons stated in the Memorandum Opinion filed contemporaneously herein addressing the Motion, it is hereby ORDERED, ADJUDGED, and DECREED that:

1. The Motion is DENIED. Lewis has not met his burden of establishing through evidence that the October 22, 2019 hearing transcript or the email communication offered as Plaintiffs' Exhibit A should be protected from public disclosure under 11 U.S.C. § 107(b).

2. The Clerk is authorized to file the October 22 transcript on the docket, but public access to the transcript and the two Memorandum Opinions issued this date shall be temporarily restricted until such time as this Order becomes final and non-appealable. Counsel for Plaintiffs and Lewis shall not be subject to this restriction as they were present at the hearing.

3. Nothing in this Order shall prevent the Clerk from instituting his usual and customary practice of requiring payment of a transcription fee before a copy of the transcript will be made available within the first 90 days of its filing.

FOOTNOTES

1.   See Motion to Disqualify Counsel, filed at Dkt. No. 101 (the “Motion to Disqualify”).

2.   Dkt. No. 226.

3.   Plaintiffs' Exhibit A involves an October 1, 2018 email communication between attorneys in the Lampl Firm.

4.   Dkt. No. 258.

5.   Declaration of Robert Lewis, Dkt. No. 101-2 (“Lewis Decl.”) at ¶ 6; Complaint in Civil Action (the “Complaint”), Dkt. No. 1 at ¶ 12; Amended Complaint, Dkt. No. 216 at ¶ 18. As the pleadings in this case have not yet closed, the Court is unable to ascertain the extent to which the averments in the Amended Complaint are uncontested. The Court assumes certain background averments are true solely for the purposes of this Motion.

6.   Transcript of October 22, 2019 Hearing (“Trans.”) at 14:16-20.

7.   Trans. at 26:1-8; 36:7-9.

8.   Trans. at 14:13-20; 26:1-8; 36:4-9.

9.   See Amended Complaint at ¶¶ 100-102.

10.   See Case No. 18-24070-GLT.

11.   Unless expressly stated otherwise, all references to “Bankruptcy Code” or to specific sections shall be to the Bankruptcy Reform Act of 1978, as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub. L. No. 109-8, 119 Stat. 23, 11 U.S.C. § 101, et seq. All references to “Bankruptcy Rule” shall be to the Federal Rules of Bankruptcy Procedure.

12.   Ex. 2 at 2; see also Stipulation of Facts (“Stipulation”), Dkt. No. 207 at ¶ 6; Lewis Decl., Dkt. No. 101-2 at ¶ 7.

13.   See Exs. 2, 4.

14.   Stipulation, Dkt. No. 207 at ¶ 7; see also Ex. 2.

15.   Trans. at 12:12-17; Lewis Decl., Dkt. No. 101-2 at ¶ 16.

16.   Trans. at 12:17-20. Lewis previously contacted another lawyer, Attorney Bob Blumling, but as of October 1, 2018, had made no decision on whether he wished to proceed with any action. Trans. at 13:2-5; 27:14-16; see also Lewis Decl., Dkt. No. 101-2 at ¶ 23.

17.   Trans. at 31, 46.

18.   Trans. at 13:15-19.

19.   Trans. at 25:23-25; 26:1-8; 36:2-15.

20.   Declaration of Brandon Otis (“Otis Decl.”), Dkt. No. 101-3 at ¶ 15. See also Trans. at 14-24.

21.   Trans. at 27:4-10.

22.   Trans. at 46:23-47:2 (“Up 'til that point, everyone I had talked to was eager to give us any documentation that they had. When I asked Brandon, who I had been told had a good timeline and other documents, he said that they weren't sharing any documents without a subpoena and that was memorable.”).

23.   Id. at ¶ 10.

24.   Ex. A; Trans. at 53:8-13.

25.   Trans. at 32-33.

26.   Id. at ¶ 1.

27.   See Complaint, Dkt. No. 1 at ¶¶ 123-29.

28.   Stipulation, Dkt. No. 207 at ¶ 2.

29.   See Opinion and Order dated June 19, 2019, Dkt. No. 48; Stipulation, Dkt. No. 207 at ¶ 3.

30.   Amended Complaint, Dkt. No. 216 at Counts V-VII.

31.   Id. at ¶¶ 41(7)(g), (44)(u), (53)(b), (54)(b), 72, 156, and 166. Among other things, Lewis is accused of leading a “private investment syndicate” as of May 2017. Id. at ¶ 72(c).

32.   Id. at ¶¶ 34, 37, 153-54.

33.   Id. at ¶ 35.

34.   See, e.g., Trans. at 18, 20-24.

35.   Opinion and Order, Dkt. No. 48.

36.   In re Snyder, 472 U.S. 634, 643, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985); Fellheimer, Eichen & Braverman, P.C. v. Charter Technologies, Inc., 57 F.3d 1215, 1224 (3d Cir. 1995).

37.   See Motion at ¶ 19.

38.   Id. at ¶¶ 38, 41.

39.   Id. at ¶ 30.

40.   Dkt. No. 258 at ¶ 16. The plaintiffs have not asserted that Kunkel's summary email (Exhibit A) is subject to the privilege or attorney work-product doctrine.

41.   See 11 U.S.C. § 107(a).

42.   See 11 U.S.C. § 107(a); see also 11 U.S.C. § 112.

43.   11 U.S.C. § 107(c)(1); see also Fed. R. Bankr. P. 9037.

44.   11 U.S.C. § 107(b)(2).

45.   11 U.S.C. § 107(b)(1).

46.   2 Collier on Bankruptcy ¶ 107.03 (Richard Levin and Henry J. Sommer eds., 16th ed. 2020).

47.   Video Software Dealers Ass'n v. Orion Pictures Corp. (In re Orion Pictures Corp.), 21 F.3d 24, 27 (2d Cir. 1994).

48.   In re Selected Cases in Which Wells Fargo Bank, N.A., Seeks Relief Against Selected Debtor(s) and/or Ronda J. Winnecour, 2019 WL 642850, at *2 (Bankr. W.D. Pa. Feb. 14, 2019).

49.   See Fed. R. Bankr. P. 9018.

50.   Orion Pictures Corp., 21 F.3d at 27.

51.   See In re 50-Off Stores, Inc., 213 B.R. 646 (Bankr. W.D. Tex. 1997); In re Pasquinelli Homebuilding, LLC, 2013 WL 594459 (Bankr. N.D. Ill. Feb. 14, 2013); In re 4 Front Petroleum, Inc., 2007 WL 3005183 (Bankr. N.D. Okla. Oct. 11, 2007).

52.   Trans. at 13:13-22.

53.   See, e.g., Trans. at 18, 20-24; Motion at ¶¶ 39, 44.

54.   See Memorandum Opinion on the Motion to Disqualify.

55.   In re Grand Jury Subpoena, 745 F.3d 681, 687 (3d Cir. 2014) citing In re Grand Jury, 705 F.3d 133, 151 (3d Cir. 2012).

56.   The privilege is codified under Pennsylvania law at 42 Pa. C.S. § 5928.

57.   Montgomery County v. MicroVote Corp., 175 F.3d 296 (3d Cir. 1999) citing Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir. 1994); see also In re Chevron Corp., 650 F.3d 276, 289 (3d Cir. 2011) (the privilege will attach to communications when: it is a “(1) a communication, (2) made between privileged persons, (3) in confidence, (4) for the purpose of obtaining or providing legal assistance for the client”).

58.   In re Ford Motor Co., 110 F.3d 954, 965 (3d Cir. 1997) abrogated on other grounds by Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009); see also In re Niaspan Antitrust Litigation, 2017 WL 3668907, at *1 (E.D. Pa. Aug. 24, 2017) (“Recognizing that lawyers sometimes provide purely business advice, courts have held that the privilege applies only where the communications were made [for] “the express purpose of securing legal not business advice.”)

59.   Rhone-Poulenc Rorer Inc., 32 F.3d at 862 citing Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).

60.   UPMC v. CBIZ, Inc., 2018 WL 1542423, at *6 (W.D. Pa. March 29, 2018) citing Wise Inv., Inc. v. Bracy Contracting, Inc., 2002 WL 31955990, at * 2 (E.D. Pa. Oct. 23, 2002).

61.   Trans. at 13:13-19.

62.   Trans. at 12.

63.   See Ex. 2 at 8. Mark Aloe subsequently made a pitch to various investors to join a prospective action the Lampl Firm was preparing, but this was sent after Otis agreed to talk with Kunkel. See Ex. 4. While this communication outlines the terms of a retainer and fee structure, it originated from a fellow investor.

64.   Trans. at 35:23-36:1.

65.   Nothing in the record suggests Otis had the authority to retain a lawyer on Lewis' behalf.

66.   Trans. at 27, 46-47.

67.   Trans. at 27. Although Otis now suggests that he did not “demand” a subpoena, it is clear that Lewis had no intention of producing documents informally. Trans. at 33.

68.   See 50-Off Stores, 213 B.R. 646 (keeping proceedings involving the retention of an estate professional under seal); Pasquinelli Homebuilding, 2013 WL 594459 (finding, without much discussion, that trustee's application to retain a litigation consultant should be sealed “to protect the Trustee's litigation efforts and to level the playing field”); 4 Front Petroleum, 2007 WL 3005183 (sealing a motion containing the trustee's proposed litigation strategy as well as privileged information and work product).

69.   See Trans. at 12:12-17; 13:13-19.

70.   Cases interpreting the meaning of “defamatory” are slightly more plentiful, but Lewis does not hang his hat on this aspect of the statute. See, e.g., In re Continental Airlines, 150 B.R. 334 (D. Del. 1993) (reversing bankruptcy court order sealing a fee examiner's report because it contained factual information that was truthful and not defamatory).

71.   In re Food Mgmt. Group, LLC, 359 B.R. 543, 558-59, n. 16 (Bankr. S.D.N.Y. 2007).

72.   In re Anthracite Capital, Inc., 492 B.R. 162, 175 (Bankr. S.D.N.Y. 2013) citing In re Food Mgmt., 359 B.R. at 558; see also Barcher v. New York Univ. School of Law, 993 F. Supp. 177, 181 (S.D.N.Y. 1998).

73.   Neal v. The Kansas City Star (In re Neal), 461 F.3d 1048 (8th Cir. 2006).

74.   Id. at 1054 (a former judge who listed attorneys as creditors could not exclude the list from public view when there was nothing scandalous about an accurate listing of creditors submitted in compliance with bankruptcy rules and any reputational damage derived solely by inference to the origin of any attorney loans).

75.   See e.g., Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417 (9th Cir. 2011)(finding error when the bankruptcy court refused to seal allegations that a priest sexually abused children).

76.   Id.

77.   In re Gitto Global Corp., 422 F.3d 1, 16 (1st Cir. 2005)(determining that the test for defamatory material under § 107(b)(2) is whether the material (1) would alter the party's reputation in the eyes of a reasonable person, and (2) is untrue, or potentially untrue and irrelevant or included for an improper end); see also 2 Collier on Bankruptcy ¶ 107.03 (Richard Levin and Henry J. Sommer eds., 16th ed. 2020) (“Mere embarrassment, or harm to reputation based on nonscandalous, nondefamatory information disclosed is not sufficient cause to restrict public access.”)

78.   See Motion at ¶¶ 35-36.

79.   Id. at ¶ 38.

80.   Motion at ¶¶ 38, 41.

1.   Dkt. No. 226.

GREGORY L. TADDONIO, UNITED STATES BANKRUPTCY JUDGE