Tuesday, October 29, 2019

Amicus Curiae Brief on Behalf of the PDI in Support of the Attorney Client Privilege and the Attorney Work Product Privilege


Here is a LINK to the amicus curiae Brief I wrote at the request of the Pennsylvania Defense Institute in favor of the position put forth by the Appellant, The Erie Insurance Exchange, in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018 (Pa. Super.).

By way of background, this case involves claims of a UIM breach of contract and bad faith arising out of a motor vehicle accident matter.  Notably, the carrier did not assert advice of counsel as a defense to the bad faith claims.

During the course of discovery, the Plaintiff served Requests for Production upon the carrier, one of which Requests demanded the production of a "complete copy of all documentation reflecting any investigation, evaluation and/or valuation of Plaintiffs' claims for underinsured motorist coverage authored, prepared by or obtained [the carrier's defense counsel and/or the defense firm]."

The trial court judge in Blair County ruled for an in camera inspection of the defense attorney's file with respect to the Request for Production at issue.  In response, the carrier objected, citing to the attorney-client privilege and the attorney work product privilege, and this appeal followed.

The amicus curiae Brief argues that, above and beyond the particulars of the narrow discovery dispute presented in this specific case, to allow for any inspection of the defense attorney's file would violate the protections afforded by the attorney-client privilege which has existed for over 300 years in Pennsylvania as well as the attorney work product doctrine. 

It was also asserted in the Brief that, if an inspection of a defense counsel's file is permitted, the danger then exists with such a precedent that these bedrock privileges long recognized in the law could be eroded to the extent that the files of all attorneys could become subject to inspection by opposing counsel.

It was additionally argued in the Brief that, practically speaking, if a judge conducts an in camera inspection of an attorney's file and rules that the contents of the same were not discoverable, then that judge could be disqualified from entering any further rulings in the case given that that judge had viewed non-discoverable information that could color or taint his or her analysis of future issues in the matter.  This is particularly so in a bad faith action which proceeds to a bench trial after the completion of discovery in Pennsylvania state courts.

The parties await an argument date from the en banc Pennsylvania Superior Court on the appeal presented.  I send thanks to the Pennsylvania Defense Institute for the opportunity to assist in this case.



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