In recent split decision by the Superior Court in the case of Gregury v. Greguras, (Pa. Super. Nov. 22, 2016 Shogan, Ott, Strassburger, J.J.)(Op. by Strassburger, J.), the Pennsylvania Superior Court ruled that a litigant who asserts an attorney/client privilege during the course of discovery, thereby precluding discovery on a certain issue, may not later waive that privilege on the witness stand at trial.
This decision has been reported as involving an apparent issue of first impression. The case involved a dispute over a Will.
The appeal arose from a trial court decision which denied a motion by the Plaintiff seeking to either secure a mistrial or, in the alternative, an extension of the discovery period, after the Defendant stated at trial that she would be waiving a privilege she previously asserted during the course of pre-trial discovery.
The Superior Court ruled that the “late waiver of privilege essentially amounts to trial by ambush, disallowing potentially relevant discovery and allowing undisclosed information to be presented at trial in direct contradiction to our long-held standard that privilege may not be used both as a sword and a shield.”
The Superior Court noted that the trial court’s denial of the Plaintiff’s request for a mistrial or additional discovery made it impossible for the Plaintiff to fully cross-examine the Defendant on the issue presented.
In the end, relying in part upon decisions from other states, the Pennsylvania Superior Court held that a party may not waive a privilege at trial which was previously asserted during the discovery of pre-trial process.
Judge Ott's Dissenting Opinion can be viewed HERE.
Source: Article: “Attorney-Client Privilege Can’t Be Waived When Asserted Pre-Trial,” by Max Mitchell. Pennsylvania Law Weekly (December 6, 2016).