                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA : No. 108 MM 2014
                                  :
                                  :
           v.                     :
                                  :
                                  :
JEFFREY SUZENSKI, MITCHELL RUBIN, :
JOSEPH BRIMMEIER, ROBERT J.       :
MELLOW, GEORGE HATALOWICH,        :
DENNIS MILLER,                    :
                                  :
                                  :
PETITION OF: PENNSYLVANIA         :
TURNPIKE COMMISSION               :
                                  :
                                  :
                                  :
                                  :

                              CONCURRING STATEMENT


MR. CHIEF JUSTICE CASTILLE                                      FILED: August 11, 2014
       The Court today grants in part the Emergency Application of the Pennsylvania

Turnpike Commission (the “Commission”) to Enforce Supersedeas or, in the Alternative,

for Partial Stay of Trial Court Order Pending Appeal, and I join in that decision. I write

separately to briefly explain my reasons for granting relief.

       The Commission seeks emergency relief from orders of the Court of Common

Pleas of Dauphin County and the Superior Court which effectively allow the production of

allegedly confidential and privileged material sought in discovery requests served upon

the Office of Attorney General (the “OAG”) in these criminal cases, scheduled to go to trial

on August 18, 2014.      The material consists of approximately 12 terabytes of data,

estimated to include 30 million documents, copied from Commission hard drives and
servers by the OAG during a grand jury investigation that ultimately resulted in criminal

charges against the various defendants. The trial court denied the Commission’s motion

for a protective order, and upon the Commission’s appeal to the Superior Court, denied

the Commission’s motion for a stay pending appeal. The Superior Court initially granted

a stay, but then vacated its own stay on July 14, 2014, without explanation, and

scheduled briefing in the matter, with the initial brief due in Superior Court on July 29,

2014.

        In its application to this Court, the Commission seeks a directive that the OAG,

pending resolution of the Commission’s appeal, produce only redacted material from the

copied drives and servers to the defendants, and only after the material has first been

reviewed by the OAG and determined to be relevant to the pending prosecutions, and not

private, confidential or otherwise legally privileged;1 the Commission further requests


1   According to the Commission, the subject material includes:

       a. Full and partial social security numbers of Commission employees;
       b. Commission bank account information, including the identification of
       authorized signers for two accounts, the routing number and account
       number of the Commonwealth of Pennsylvania’s General Fund Account,
       the account number for a Commission checking account, and balances of
       certain Commission accounts;
       c. Discussions between attorneys (both in-house counsel and outside
       counsel) regarding a variety of legal matters, including case valuations and
       settlement strategies; in-house counsel’s memorandum regarding the
       exercise of Commission powers and an internal report describing pending
       legal matters; in-house counsel’s discussion of property acquisitions; and
       outside counsel’s comments about a court order involving stormwater
       damage to private property, key points for the Commission to address
       during an arbitration hearing, and discovery needed for a case involving a
       truck accident;
       d. Software developer access keys for the Commission’s SAP system, IP
       addresses, server names, and the results of internal testing on software
       reflecting confidential employee information;
(continuedG)

                                  [No. 108 MM 2014] - 2
that the OAG be directed not to turn over any other materials during the pendency of the

appeal. Given the privilege issues implicated, the Commission is entitled to relief.

       In In re Thirty-Third Statewide Inv. Grand Jury, 86 A.3d 204 (Pa. 2014), we

considered the application of attorney-client and work product privileges in the context of

a grand jury investigation into the operation of a Commonwealth agency – the

Commission. (That grand jury investigation led to these prosecutions.) We ultimately



(Gcontinued)
     e. Internal investigation reports and communications by the Commission’s
     Inspector General’s office reflecting, inter alia, surveillance activities and
     the identities of investigation subjects, confidential informants, and
     individuals who submitted tips about potential misconduct through the
     Commission’s email “Tipbox”;
     f. The design and composition of a Turnpike tunnel and a structural steel
     plan for a bridge over the Turnpike;
     g. A chart prepared by Wells Fargo Bank entitled “Pennsylvania Turnpike
     Pittsburgh Vault Activity” listing voice response unit (VRU) identification
     numbers and deposit account numbers;
     h. Cash pick-up schedule by armored trucks from a Turnpike interchange;
     i. Employees’ medical procedures and/or medical leave requests;
     j. Scheduling and results of drug tests for employees;
     k. Information regarding beneficiaries of retirees’ benefits, including their
     social security numbers, home addresses, and whether the retiree receives
     disability benefits or is deceased;
     l. Employees’ payroll deductions and federal tax filing status;
     m. Employees’ home phone numbers and personal cell phone numbers;
     n. Employee disciplinary actions;
     o. E-Z Pass account holder information as well as a Payment Card Industry
     (PCI) Quarterly Scan Executive Report, which identifies IP addresses and
     security ratings;
     p. A Human Resources Department investigation of a harassment claim,
     including the identities of the complainant, the accused, and interview
     summaries; and
     q. Internal discussions regarding the Commission’s response to a fatal
     accident on the Turnpike.

Emergency Application at 7-9.



                                 [No. 108 MM 2014] - 3
held that, in the specific circumstances presented, and given the role of the OAG, in

response to grand jury subpoenas, the Commission was not entitled to a protective order

shielding its communications with government lawyers from the OAG.                  Notably,

however, nothing in our decision in Thirty-Third Grand Jury remotely suggested that

surrender of documents – as stated, approximately 30 million documents here – to the

OAG for grand jury purposes means that all privileges are lost, nor did it suggest that the

OAG, and the trial court in any ensuing prosecution, are absolved of their duties under

discovery rules, including the protection of privileged material. See, e.g., Pa .R. Crim. P.

573 (pretrial discovery and inspection).

       In its April 16, 2014 order denying the Commission’s motion for protective order,

the trial court took the following measures to protect confidential and sensitive material

from disclosure in the underlying criminal prosecutions:


       [T]o the extent that there is a possibility that the discovery materials may
       contain confidential or personal information, the parties are directed that
       any information or material obtained from the Pennsylvania Turnpike
       Commission and produced by the Commonwealth as part of discovery in
       this matter shall not be used, or the contents thereof communicated or
       disclosed to any person or entity, except as is necessary to the criminal trial
       of this matter.

In other words, the court determined that the OAG, which first received the copied drives

and servers from the Commission three years ago (with approved access since the

Thirty-Third Grand Jury decision on February 18, 2014), and which apparently has not yet

reviewed those documents such that it can properly respond to defense discovery

requests issued in its own prosecution, can simply turn over the material to the

defendants, and place the onus on defense counsel – whose primary duties are to their

clients, not to third parties -- to determine what material – some of which is obviously




                                  [No. 108 MM 2014] - 4
privileged or intensely private -- “shall not be used” outside the context of the criminal trial

in this matter. In my view, this approach is obviously inadequate.

       In criminal matters, discovery is governed by specific rules, and the obligation is

upon the prosecution to determine what material in its possession is properly

discoverable.    Our ruling for the distinct purposes of the underlying Grand Jury

investigation did nothing to alter that obligation, and consign the determination of the

status of protected material to defense counsel. Given the nature of the materials the

trial court essentially authorized for unlimited disclosure to defense counsel, the

Commission is obviously aggrieved and directly so; it is one thing for a bell that cannot be

unrung to sound in the narrow confines of a confidential, sealed grand jury investigation; it

is quite another when it is in the context of a specific criminal prosecution, and the

protection of private and privileged information consigned to defense counsel whose

primary duty is to their specific clients and not to the Commission or its personnel.



       Messrs. Justice Saylor and Baer, Madame Justice Todd, and Mr. Justice Stevens

join this Concurring Statement.




                                   [No. 108 MM 2014] - 5
