JASON MCMANUS HOLTZMAN, JACKIE MCMANUS HOLTZMAN, and MADALENA MCMANUS HOLTZMAN, as Trustees of the Elizabeth McManus Holtzman Irrevocable Trust, Plaintiffs, v. PHILADELPHIA MUSEUM OF ART Defendant CIVIL ACTION No. 22-cv-00122-JMY United States District Court, E.D. Pennsylvania Filed November 26, 2024 Stengel, Lawrence F., Special Master SPECIAL MASTER LAWRENCE F. STENGEL'S FOURTH REPORT AND RECOMMENDATION TO THE COURT RESOLVING PLAINTIFFS' MOTION FOR PROTECTIVE ORDER (ECF 142) AND DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS (ECF 144) I. INTRODUCTION *1 Plaintiffs' Motion for a Protective Order (ECF 142) and Defendant's Opposition thereto (ECF 144), which included an embedded request to compel responses to the Defendant's Requests for Production Nos. 85 and 86 (relating to the preparation of Dr. Tatzkow's errata sheet), were submitted to me in response to my Rule to Show Cause Why Report and Recommendation Recommending that the Court Compel Third Deposition of Dr. Tatzkow Should Not Be Issued (ECF 138). After reviewing all relevant filings, for the reasons set forth below, I recommend that the Court deny Plaintiffs' motion for a protective order and grant the Defendant's motion to compel. I also recommend that the Court order that Dr. Tatzkow sit for a third and final deposition, which should be limited to three hours and conducted by videoconference. If the parties elect, and this Court so orders, I can again supervise. II. FACTS AND PROCEDURAL HISTORY On December 10, 2021, Plaintiffs Jason McManus Holtzman, Jackie McManus Holtzman, and Madalena McManus Holtzman, as Trustees of the Elizabeth McManus Holtzman Irrevocable Trust (collectively, “Plaintiffs”) instituted an action in the Philadelphia Court of Common Pleas to recover a 1926 painting by Dutch artist Piet Mondrian known as Schilderij No. 1, 60 x 60 cm (“the Painting”) from Defendant Philadelphia Museum of Art (“Defendant”) and asserted claims under Pennsylvania law for replevin, conversion, and unjust enrichment. Plaintiffs alleged their action was timely pursuant to the Holocaust Expropriated Art Recovery Act (“HEAR Act”) of 2016, Pub. L. No. 114-308, 130 Stat. 1524. Pursuant to 28 U.S.C. § 1441(a), Defendant removed this case to the Eastern District of Pennsylvania on January 11, 2022, on the basis that the Plaintiffs raised a federal question. (ECF 1). On August 10, 2022, Plaintiffs filed an Amended Complaint. (ECF 39). On January 22, 2024, the Court appointed me Special Discovery Master, pursuant to Fed. R. Civ. P. 53(a)(1)(C). (ECF 114). Fact discovery, including depositions, has been ongoing. Relevant here, Dr. Tatzkow (who prepared an “expert report,” but who is not serving as a testifying expert for the Plaintiffs) was first deposed on September 14, 2023. During that initial deposition, Dr. Tatzkow (sua sponte) refused to answer various questions, without instructions from the Plaintiffs' attorneys (Kaye Spiegler PLLC) to do so. The Plaintiffs' attorneys also offered no counsel to Dr. Tatzkow in response to her decision to withhold information. After that deposition, Dr. Tatzkow submitted a 13-page errata sheet to her testimony. Following motion practice, Judge Younge ordered Dr. Tatzkow to return for a second deposition and ordered me in my capacity as Special Master to supervise it. Dr. Tatzkow's second deposition occurred on August 27, 2024. During that second deposition, Plaintiffs' counsel instructed Dr. Tatzkow not to answer numerous questions about the preparation of her 13-page errata sheet, based on attorney-client privilege. At the deposition, I determined that no attorney-client relationship existed and that Dr. Tatzkow should answer the questions. When the Plaintiffs disagreed with my ruling, I recommended that the testimony be captured (given that the witness had traveled to the U.S. from Germany) and that the ongoing disagreement could be resolved with further briefing on a motion to strike the purportedly privileged testimony. Plaintiffs' counsel chose not to follow my recommendation and persisted in instructing Dr. Tatzkow not to answer questions related to the errata sheet. Defendant PMA subsequently propounded requests for production related to the errata sheet. The requests remain outstanding. *2 To resolve the continuing dispute regarding Dr. Tatzkow's deposition and the preparation of her errata sheet, I subsequently issued a rule to show cause as to why a report and recommendation to Judge Younge rejecting the Plaintiffs' privilege claims and ordering Dr. Tatzkow to sit for a third deposition should not issue (ECF. 138). In response, the Plaintiffs filed their motion for a protective order (ECF 142), which was again based on a privilege claim, namely the purported existence of an “implied” attorney-client relationship between Plaintiffs' counsel and Dr. Tatzkow. To support their motion, Plaintiffs also produced to me for in camera review various documents related to the production of Dr. Tatzkow's errata sheet, which the Plaintiffs believed supported the existence of an implied attorney-client relationship. The Defendant filed its opposition (ECF 144) with an embedded motion to compel responses to Requests for Production Nos. 85 and 86, which seek various documents related to Dr. Tatzkow's errata sheet. These motions were argued before me on November 1, 2024. III. THE LEGAL STANDARD Federal district courts have “broad discretion” in managing requests for discovery and determining its appropriate scope. See Hall v. Johnson & Johnson, 2022 WL 1284466, at *3 (D.N.J. Apr. 29, 2022) (citing United States v. Washington, 869 F.3d 193, 220 (3d Cir. 2017) (noting that “[a]s we have often said, matters of docket control and discovery are committed to [the] broad discretion of the district court”)). Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Rule 26 also provides a vehicle for shielding parties from discovery. Rule 26(c) of the Federal Rules of Civil Procedure provides that “[a] party or any person from whom discovery is sought may move for a protective order” seeking the following relief: “(A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; ... [or] (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters....” See Fed. R. Civ. P. 26(c). It is within the Court's discretion to grant a protective order. See Handy v. Delaware River Surgical Suites, LLC, 2020 WL 14008101, at *1 n.1 (E.D. Pa. Sept. 11, 2020) (citations omitted). Plaintiffs maintain that their counsel have an “implied” attorney-client relationship with Dr. Tatzkow and that the ensuing attorney-client privilege shields various documents and areas of inquiry. Because the Plaintiffs here assert a claim of privilege, they bear the burden of showing it exists. See In re Matter of Bevill, Bresler & Schulman, 805 F.2d 120, 124-26 (3d Cir. 1986). In the Third Circuit, an attorney-client relationship can be implied from the conduct of the parties even when there is no explicit written agreement. Motorup Corp. v. Galland, Kharasch & Garfinkle, P.C., 2001 WL 34368760, at *3 (E.D. Pa. Dec. 4, 2001). An implied attorney-client relationship may be found if: (1) the purported client sought advice or assistance from the attorney; (2) the advice sought was within the attorney's professional competence; (3) the attorney expressly or implicitly agreed to render such assistance; (4) it is reasonable for the putative client to believe the attorney was representing him. Id. (citing Atkinson v. Haug, 622 A.2d 983, 986 (Pa. Super. 1993)). Importantly, the subjective beliefs of the putative client (not the attorney) control. See Johnson v. Buchanan Ingersoll & Rooney, P.C., 2013 WL 11272844 at *4 (Pa. Super. Mar. 26, 2013); Kashi v. McGraw-Hill Glob. Educ. Holdings, 2018 WL 4094958 at *3 (E.D. Pa. Aug. 27, 2018); Lefta Assocs. v. Hurley, 902 F. Supp. 2d 559, 581 (M.D. Pa. 2012) (“It is the reasonableness of the client's belief that the attorney is providing legal services pursuant to an attorney-client relationship that controls this issue, not the attorney's own belief.”) (citing Capital Care Corp. v. Hunt, 847 A.2d 75, 83 (Pa. Super. 2004)). IV. ANALYSIS A. Plaintiffs' Claim of an “Implied” Attorney-Client Relationship Between Their Counsel and Dr. Tatzkow. *3 I find that the Plaintiffs' claim that an “implied” attorney-client relationship exists between their counsel (Kaye Spiegler PLLC) and Dr. Tatzkow lacks merit. At her second deposition, Dr. Tatzkow denied that she was being represented by the Kaye Spiegler attorneys. Tatzkow Day 2 Tr. 14:10-16; 16:2-19. Plaintiffs' attempts to dull the sting of Dr. Tatzkow's denial (Pltfs' Mot. at 8) are unavailing. An attorney-client relationship cannot be implied where the putative client has denied its existence. Moreover, Dr. Tatzkow is a fact witness, not an expert. Tatzkow Day 2 Tr. 42:11-15.[1] While Plaintiffs' counsel did meet with Dr. Tatzkow to prepare her for her deposition, such meetings with a fact witnesses do not establish an attorney-client relationship. “In ordinary litigation, where a prospective third party, fact deponent is noticed or subpoenaed for a deposition, counsel for any party is free to communicate ex parte with the deponent, assuming the consent of the deponent or his/her counsel, if represented.” McLaughlin v. Bayer Essure, Inc., 2020 WL 2896681, at *2 (E.D. Pa. Apr. 13, 2020), report and recommendation adopted, 2020 WL 2832245 (E.D. Pa. May 5, 2020). “Either side's counsel may interview the witness and prepare him or her for the deposition by previewing the questions that may be asked, reviewing relevant documents, and so on. There is nothing at all improper about this.” Id. (quoting In re Testosterone Therapy Prods. Liab. Litig. Coordinated Pretrial Proceedings, 167 F. Supp. 3d 936, 937 (N.D. Ill. 2016)). Further, based on my in camera review of the materials that Plaintiffs provided regarding the preparation of Dr. Tatzkow's errata sheet, I am not persuaded that an attorney-client relationship can be implied. In sum, I find no implied attorney-client relationship between Dr. Tatzkow and Plaintiffs' counsel. Because Plaintiffs' counsel improvidently ignored my suggestion during the second deposition that Dr. Tatzkow be permitted to respond to all questions, subject to further motion practice that may have stricken the testimony, Dr. Tatzkow must again be deposed. With that said, I recognize that the Defendant has already had many hours with this witness. Dr. Tatzkow's third deposition must, therefore, be tailored to focus on the questions that Plaintiffs' counsel instructed the witness not to answer during the second deposition regarding the preparation of Dr. Tatzkow's extensive errata sheet. The third deposition will not be an opportunity for the Defendant otherwise to revisit previously covered topics or to refine prior lines of inquiry that were not inappropriately blocked by Plaintiffs' counsel. B. Defendant's Motion to Compel Production of Documents. Having determined that no attorney-client relationship exists between Plaintiffs' counsel and Dr. Tatzkow, Plaintiffs' privilege claim on the documents related to the preparation of her errata sheet fails. Given that there is no shield against the materials' production, the Plaintiffs must produce them (i.e., the materials that were provided to me for my in camera review) before Dr. Tatzkow's third deposition. These materials must be produced to the Defendant sufficiently in advance of the deposition to allow the Defendant time for a meaningful review. V. RECOMMENDATION *4 For the reasons set forth above, I recommend that the Court enter the attached proposed order. Respectfully submitted, SAXTON & STUMP, LLC Hon. Lawrence F. Stengel (Ret.) Court Appointed Special Master Footnotes [1] In the filings at issue and during argument, Plaintiffs again confirmed that Dr. Tatzkow is a fact witness, not an expert. Plaintiffs also stated that Dr. Tatzkow's role would be limited to authenticating various documents. Unfortunately, following additional communications with and submissions from the parties, it became clear that there is virtually no agreement between them regarding the authenticity of the various documents at issue.