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DISCOVERY-EXPERT REPORTS-PRIVILEGE-PREPARATION IN ANTICIPATION OF LITIGATION

Cardinal Midstream II, LLC v. Energy Transfer LP, 2023 Pa. Super. LEXIS 204 (May 16, 2023) (Pellegrini, J.). The substantive issue in this appeal concerns whether engineering reports required by governmental agencies are privileged work product when prepared at the direction of corporate counsel. The Appellants (Energy Transfer LP, F/K/A Energy Transfer Operating, L.P., F/K/A Energy Transfer Partners, L.P., and ETC Northeast Pipeline, LLC, F/K/A ETC Northeast Midstream, LLC, F/K/A ETC Cardinal Midstream, LLC) (collectively, ETC), were ordered to turn over to the Appellees (Cardinal Midstream II, LLC, individually, and per Midstream, LLC, by and through Cardinal Midstream II, LLC, its sellers representative (collectively, Cardinal), expert reports which ETC had, by government mandate, created during an investigation of a gas pipeline explosion. The Court of Common Pleas of Beaver County (trial court) determined that ETC’s expert reports were not privileged, making them discoverable by Cardinal, the plaintiff in the underlying breach of contract action which stems from the pipeline incident. We affirm the trial court’s order. Materials prepared in anticipation are not automatically protected. Nowhere does the Rule limit its protection of “mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories to materials prepared in anticipation.” Est. of Paterno v. Nat’l Collegiate Athletic Ass’n (NCAA), 2017 PA Super 247, 168 A.3d 187, 200 (Pa. Super. 2017). Corporate conduct — addressing a pipeline explosion in accordance with the directives of government regulators and binding law — is necessarily within ETC’s regular course of business. What makes this all the more apparent is that the reports created and submitted by ETC to the governmental agencies were identical to the reports it created in response to the agencies’ directives. These experts did not, insofar as the record reflects, generate separate analyses for ETC to use in potential litigation. This undercuts ETC’s claim that it had independently generated the reports in preparation for litigation because, if that were completely true, the reports would not have been perfectly responsive to government demands for such disclosures. It follows that ETC’s primary purpose in creating those reports was not merely its anticipation of litigation. Even assuming that ETC invoked statutory confidentiality protections when disclosing the reports to government agencies, which would not somehow transform the character of the reports or the conditions in which their creation was mandated, such that they would have to be treated as work product.