Wednesday, April 29, 2015

Attorney-Client Privilege and Subject Matter Waiver of Privilege Analyzed by Lackawanna County Judge Minora

In his recent decision in the case of One Beacon America Ins. Co. v. Phila. Indem. Ins. Co., et al., No. 2012 -CV-4490 (C.P. Lacka. Co. 2015 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed a discovery issue pertaining to the inadvertent disclosure of attorney-client privileged communications. 

By way of background, the case arose out of claims for breach of contract and a request for the entry of a declaratory judgment that coverage was owed under an insurance policy issued to the a local insured entity by Philadelphia Indemnity Insurance Company. 

This matter involved an argument that One Beacon had disclosed a privileged attorney-client communication which disclosure served to waive that privilege and thereby allowed for the discovery of the document at issue.  The communication was contained in a claim note in which an unidentified adjuster referred to the opinion of in-house counsel. 

In his Opinion, Judge Minora provided a detailed review on the current status and parameters of the attorney-client privilege under Pennsylvania law as well as the recognized "subject matter waiver" of the privilege.  This particular  type of waiver recognizes that a voluntary disclosure of a communication protected by the attorney-client privilege results in a waiver of the privilege for all communications on the same subject matter.

After reviewing the matter, Judge Minora concluded that the document at issue could not waive privilege since it was not a communication from a client to an attorney.  Therefore, the document was not protected by the attorney-client privilege.  Since the document was not protected under the attorney-client privilege, it could not serve as the basis for a subject matter waiver of the attorney-client privilege.

Judge Minora also went on to analyze the five-part test of whether the inadvertent disclosure amounted to a waiver of the privilege under the circumstances of the case.  Judge Minora ultimately ruled that the five-part test was not satisfied.

As such, the defendant's motion to compel the production of the documents at issue was denied.

This Opinion serves as an excellent primer on the issues raised by an inadvertent disclosure of a document or communication asserted to be protected by the attorney-client privilege.

Anyone wishing to secure a copy of this case may contact me at
I send thanks to Attorney Matt Clayberger of the Harrisburg, PA office of Thomas, Thomas & Hafer for bringing this case to my attention.

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