From:

To:
Cc:
Subject:
Date:
Attachments:

Spencer Brown
David G. Concannon
gmw@wlaw.net; jzc@jzc-law.com; Matthew T. Charles; Roger Bullock; Mark A. Hruska
RE: Tuvell v. BSA, et al
Thursday, October 24, 2013 1:37:50 PM
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David,

While we do not believe that PADI 0106-0107 are privileged, we acknowledge your position.
Accordingly, we will recall the documents and include them in our privilege log, which will be sent to
you on Friday. If any other party requests any of the withheld documents, we will address the issue
with the court at that time.

Yours very truly,

Spencer Brown
STRONG & HANNI
3 Triad Center, Suite 500
Salt Lake City, UT 84180
Telephone: (801) 323-2175
Facsimile: (801) 596-1508
E-mail: sbrown@strongandhanni.com
www.strongandhanni.com

CONFIDENTIALITY NOTICE: This transmission is intended for the sole use of the individual or entity
to whom it is addressed and may contain information that is confidential, attorney-client privileged,
or otherwise exempt, by law, from disclosure. Any dissemination, distribution, copying, or taking of
any action in reliance on the contents of this transmission, by someone other than the intended
addressee or its authorized agent is strictly prohibited. If you have received this transmission in
error, please notify the law firm of Strong & Hanni immediately at the telephone number listed
above, or by reply to this transmission.

From: David G. Concannon [mailto:david@davidconcannon.com]

Sent: Wednesday, October 23, 2013 3:14 PM
To: Spencer Brown
Cc: gmw@wlaw.net; jzc@jzc-law.com; Matthew T. Charles; Roger Bullock; Mark A. Hruska
Subject: Re: Tuvell v. BSA, et al

Spencer,

Thank you for the clarification regarding the addressing of the e-mail.

The Blue Water Defendants do, indeed, assert that the statements contained in an incident report
that a PADI Member is required to make to PADI after an incident are privileged, as are any internal
PADI documents that quote from or summarize these factual statements. If PADI disagrees, I think
this topic is something that the entire dive industry will have to discuss as a result of this litigation.
At a minimum, this issue could be a hot topic of discussion among the thousands of PADI Members
that may believe the statements they are required to make to PADI are privileged and will not be
subsequently produced to plaintiffs' attorneys in litigation, inadvertently or otherwise. Please take
the afternoon to reconsider and let me know your final position by tomorrow.

Thank you,

David
On Oct 23, 2013, at 2:00 PM, "Spencer Brown" <sbrown@Strongandhanni.com> wrote:

David,

Thank you for your email. To clear up any confusion regarding delivery of my October
18, 2013 letter, the letter was sent via email and U.S. mail. Mark Hruska did not send
the letter, although his name was included on the signature block. It was sent by my
office under my signature. The letter was attached to an email by my administrative
assistant, Cynthia Stock, at 4:11 p.m. As you can see from her email below, it was sent
to you. If you did not receive this email, please let us know and we will work to
determine if there was any error in our system. It was certainly not our intent to cut
you out of the conversation.

We decline to recall the documents bates-labeled PADI 0106 and PADI 0107 as
requested in your email. After review of these pages, we do not believe that they are
subject to any privilege or work product protection. As you know, the Douglas and
Huber statements were part of an incident report that was designated as prepared for
the purpose of receiving legal advice or for use in anticipated litigation. While we do
not believe that the statements are privileged, we understand that Blue Water may
intend to assert that privilege, and we will have to address that issue in the future.
That is why we recalled the statements when we discovered that they were
inadvertently produced. In contrast, pages 106 and 107 are forms contained in PADIs
files and prepared in PADIs ordinary course of business. Therefore, they are not
privileged and will not be recalled.

Please contact us with any discussion.

Yours very truly,

Spencer

Spencer Brown
STRONG & HANNI
3 Triad Center, Suite 500
Salt Lake City, UT 84180
Telephone: (801) 323-2175
Facsimile: (801) 596-1508
E-mail: sbrown@strongandhanni.com
www.strongandhanni.com
<image002.png> <image003.png>
CONFIDENTIALITY NOTICE: This transmission is intended for the sole use of the
individual or entity to whom it is addressed and may contain information that is
confidential, attorney-client privileged, or otherwise exempt, by law, from disclosure.
Any dissemination, distribution, copying, or taking of any action in reliance on the
contents of this transmission, by someone other than the intended addressee or its
authorized agent is strictly prohibited. If you have received this transmission in error,
please notify the law firm of Strong & Hanni immediately at the telephone number
listed above, or by reply to this transmission.

From: David G. Concannon [mailto:david@davidconcannon.com]

Sent: Tuesday, October 22, 2013 5:05 PM
To: gmw@wlaw.net; jzc@jzc-law.com; Matthew T. Charles; Roger Bullock; Spencer
Brown; Mark A. Hruska
Subject: RE: Tuvell v. BSA, et al

Gentlemen,
I was traveling on business for the past several days and I am going out of town again
tomorrow. I was surprised to see that Mark Hruskas letter dated October 18, 2013
was not e-mailed to me, although it is addressed to me. I received the letter for the
first time yesterday, after it was forwarded to me by counsel for the BSA. In the
future, please copy me on all correspondence, especially when this correspondence
addresses privileged documents from my client to PADI, that were inadvertently
produced by PADI to all of the parties in this litigation and you ask the recipients to
return without reading.
Furthermore, although my associate returned documents Bates numbered PADI 010911 on the basis of privilege, in accordance with the request in your letter, the nature
of the documents is described in the Attachments section of the document Bates
numbered PADI 0106: Narratives from incident report. However, the facts within
the privileged communications that are contained in the Narratives from incident
report (PADI 0109-11) are summarized almost verbatim in the SUMMARY
section of PADI 0106, and you have not recalled these privileged communications
under the claw back provision of the parties Fed. R. Civ. P 26(f) report or under
Fed. R. Civ. P 26(b)(5)(B). Please do so immediately.

To be clear, Corbett Douglas, Lowell Huber and Blue Water Scuba of Logan are
asserting that the facts and communications that they had with PADI are privileged
under the attorney-client privilege and work product doctrine, and that PADI has no
right to disclose these privileged communications or the facts contained therein to
anyone without the express written consent of Corbett Douglas, Lowell Huber and
Blue Water Scuba of Logan, which you do not have. PADIs disclosure of these
communications without the consent of Corbett Douglas, Lowell Huber and Blue
Water Scuba of Logan does not constitute a waiver of any applicable privileges by the
people making the communications to PADI. We respectfully request that PADI
immediately request the destruction and return of the documents labeled PADI 010607 by the recipients of these documents pursuant to Fed. R. Civ. P 26(b)(5)(B).
Thank you.
Sincerely,
David G. Concannon
Law Offices of David G. Concannon, LLC
200 Eagle Road, Suite 116
Wayne, Pennsylvania 19087
Phone: (610) 293-8084
Fax: (610) 293-8086
david@davidconcannon.com
www.davidconcannon.com
*****CONFIDENTIALITY NOTICE*****
This email, including attachments, is intended for the exclusive use of the person or
entity to which it is addressed and may contain confidential or privileged information.
If the reader of this email is not the intended recipient or his or her authorized agent,
the reader is hereby notified that any dissemination, distribution or copying of this
email is prohibited. If you have received this email in error please notify the sender
by reply email of the error and then delete this email immediately.
From: Mike Skolnick [mailto:mfskolnick@kippandchristian.com]
Sent: Monday, October 21, 2013 11:06 AM
To: ahall@dahlaw.com; David G. Concannon; ekd@smithglauser.com; gmw@wlaw.net;
rencher@ssrfirm.com; jzc@jzc-law.com; Matthew T. Charles; rgilchrist@egclegal.com;
rbullock@strongandhanni.com; sbrown@strongandhanni.com; Mark A. Hruska;
pdaehnke@bonnebridges.com
Cc: Mike Skolnick; Catherine Rice; Nancy Thomas; Sam Goble
Subject: RE: Tuvell v. BSA, et al

Gentlemen Per Spencers request, we are segregating and deleting the indicated
documents.

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From: Cynthia A. Stock [mailto:cstock@Strongandhanni.com]

Sent: Friday, October 18, 2013 4:11 PM

To: ahall@dahlaw.com; david@davidconcannon.com; ekd@smithglauser.com;
gmw@wlaw.net; rencher@ssrfirm.com; jzc@jzc-law.com; matt@davidconcannon.com;
Mike Skolnick; pdaehnke@bonnebridges.com; rgilchrist@egclegal.com; Sam Goble
Cc: Roger Bullock; Spencer Brown; Mark A. Hruska
Subject: Tuvell v. BSA, et al

Tuvell v. BSA, et al

Please find attached:

1. October 18, 2013 letter from Spencer Brown re privileged documents.

Please direct responses or questions to Roger Bullock or Spencer Brown.

If you have any difficulty opening the attachment please contact me directly.
Thank you. Have a great day.

Cynthia Stock
Executive Assistant
Strong & Hanni
3 Triad Center, Suite 500
Salt Lake City, UT 84180
801.323.2033
Fax: 801.596.1508
cstock@strongandhanni.com

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