Superior Court Reviews Current Status of Attorney-Client Privilege Between Attorneys and Third Party Claim Administrators

In its recent decision in the case Brown v. Greyhound Lines, Inc., No. 1167 EDA 2015, 2016 Pa. Super. 108 (Pa. Super. May 24, 2016 Shogan, Mundy, and Fitzgerald, JJ.) (Opinion by Shogan, J.), the Pennsylvania Superior Court addressed issues pertaining to the attorney/client privilege and the work product doctrine as applied between attorneys and third party administrators in civil litigation matters. 

This matter arose out of a bus accident that occurred on Interstate 80 in Union County, Pennsylvania.   Forty-two (42) Plaintiffs filed personal injury actions in Pennsylvania, New York, Ohio, and Texas against Greyhound.  

A particular issue raised in this matter involved a Request for Production of Documents sent by the Plaintiff to Defendant First Group America seeking the contents of claims files, correspondence, and emails discussing the bus accident that were sent to or from any individual employed by Gallagher Bassett, a third party adjustment company which contractually handled claims and investigations for Greyhound and First Group.  The Defendants objected to these discovery requests on the basis that the materials were confidential under the attorney/client privilege and attorney work product privilege.  

The trial court directed that any materials objected to on the basis of privilege would be made part of a privileged log to be provided to all parties and also require that the redacted and unredacted documents be submitted to the court for an in-camera review.  As a result of that in-camera review, the trial court issued various Orders regarding the production of certain evidence, including a videotaped mock deposition of the bus driver.   The Defendants filed an appeal.  

After providing a thorough review of the current status of the attorney/client privilege and work product doctrine under Pennsylvania law, the court allowed for the production of the mock deposition tape.   

On other issues, Greyhound asserted that the communications between its counsel and Gallagher Bassett, the claims administrator investigating the case on counsel’s behalf, were protected by the attorney/client privilege.  

Applying the law to the case before it, the court found that the Defendants had failed to establish that the trial court’s rulings allowing for the discovery of certain documents should be overturned.   In part, the court faulted the Defendants in failing to carry their burden of proof on the privilege by failing to make any specific arguments beyond citing general precepts concerning the attorney/client and work product privileges.  

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh law office of Thomas, Thomas & Hafner for bringing this case to my attention.