Tuesday, December 6, 2016

Superior Court Rules That Any Trial Court Orders on Discovery Privileges Can Go Right Up the Appellate Ladder

In its recent decision in the case of Farrell v. Regola, 2016 Pa. Super. 241 (Pa. Super Nov. 8, 2016 Bowes, Jenkins, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court’s decision on an interlocutory appeal taken from a discovery order.  

The case involved claims of privilege, including the attorney/client privilege and psychologist/patient privilege relative to requested information from a Defendant.  

The court ruled that the ordering of the production of the Defendant’s privileged information, even for the purpose of an in camera review by the trial court, allows for an immediate interlocutory appeal as of right as a collateral order.  

The Superior Court ruled that, if matters are indeed privileged, no one, not even a trial judge, may have access to them.  The Superior Court also ruled that the application of privileges is subject to a de novo review. 

The court went on to note that statements made to a psychologist during the course of therapy are indeed privileged.   The court also noted that this privilege covers statements made to any members of the treatment team, including social workers.  

The court also found that since the Defendant did not initiate the cause of action, the Defendant did not waive the privilege asserted.  

The court otherwise ruled in this matter that a party’s notes taken at a deposition at the direction of counsel, are protected by attorney/client privilege. 

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention. 

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