Superior Court Holds That Notes Created by Investigator Retained by Attorney Are Not Protected From Discovery

In its recent decision in the case of McIlmail v. Archdiocese of Philadelphia, No. 1009 EDA 2017 (Pa. Super. June 7, 2018 Panella, J., Olson, J., and Stevens, P.J.E.) (Op. by Panella, J.),  the Pennsylvania Superior Court addressed the following two discovery issues:

1.         Are notes and memoranda of witness interviews by a private investigator, acting at the express direction of defense counsel, protected by the attorney work-product doctrine, as defined in Pennsylvania Rules of Civil Procedure  No. 4003.3, to the same extent as if the interviews were conducted by counsel, and

2.         Whether the defense should be estopped from relying upon the attorney work-product doctrine because it pursued disclosure of the identical materials from the claimant’s attorney. 

Pennsylvania Superior Court ultimately ruled that, when an investigator is hired expressly by the attorney of the Defendant, then the investigator’s notes of witness interviews are not privileged or protected from discovery even though the investigator was acting at the express direction of the attorney.   In its decision, the court noted that Pa.R.C.P. 4003.3 sets different restrictions in terms of production of material prepared by a party’s attorney as compared to material prepared by a party’s representative.   The court noted that there is a higher bar of protection in relation to the discovery of the work product of an attorney.  

In contrast, as to materials produced by any other representative of a party, Rule 4003.3 only prohibits the disclosure of the representative’s mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.  

Here, the court found that the work product doctrine under Pennsylvania Rules of Civil Procedure  4003.3 could not be used to preclude the disclosure of notes and summaries written by an investigator as opposed to by the party’s attorney.   The court rejected the notion that the notes and memoranda completed by a private investigator acting at the expressed direction of counsel, are protected by the attorney work product doctrine to the same extent as if the documents were drafted by counsel.   The court stated that to accept such an argument would be an impermissible expansion of the language of Pa.R.C.P. 4003.3.  

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

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