Monday, June 24, 2019

Pennsylvania Superior Court Addresses Scope of Attorney-Client Privilege


In the case of Newsuan v. Republic Services, Inc.,  No. 1248 EDA 2018 (Pa. Super. June 20, 2019 Olson, J., Dubow, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.)(Olson, J., Concurring), the Pennsylvania Superior Court reversed and remanded a trial court's decision to grant a plaintiff's motion to compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident.

The lower court opinions in this case are summarized in prior Tort Talk posts that can be viewed HERE.

According to the lower court's Opinion, the defense attorneys allegedly refused to produce information about the witnesses because those attorneys allegedly wanted to interview them first and possibly even offer to represent the witnesses for free in order to create an attorney-client relationship with the witnesses and thereby preclude anyone else from interviewing them.

The trial court had ruled, in part, that the defendants had waived their claims by failing to assert appropriate objections before the trial court.  

The trial court also offered in a Rule 1925 Opinion that the appeal had no merit because the trial court’s Order did not require the disclosure of any privilege attorney-client communications or attorney work product. In this regard, the court noted that the interviews with potential witnesses at issue occurred prior to the formation of any attorney-client relationship between the defense counsel and the witnesses and, therefore, were not privileged.  

The court also noted that the appeal by the appellants was improper as a trial court order concerning routine discovery or factual information is not the proper subject for an appeal in the middle of a litigation.

The Pennsylvania Superior Court initially ruled that the issues pertaining to the attorney-client privilege were appealable under the collateral order doctrine.

The Superior Court went onto review the rules surrounding the attorney-client privilege and ruled that the witness statements at issue did fall within the privilege.  As such the lower court's ruling was reversed.

Anyone wishing to review the Court's decision in this matter may click this LINK.

I send thanks to Attorney Matthew J. McColgan of the Philadelphia office of German, Gallagher & Murtaugh for bringing this decision to my attention.

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