Friday, December 4, 2020

Here's A Case To Use If They Refuse to Produce Photographs (But Note: It's Marked Non-Precedential)

In the case of Colton v. West Penn Power Co.,  1791 WDA 2019 (Pa. Super. Oct. 15, 2020 Shogan, J., McLaughlin, J., and Musmanno, J.) (Op. by Musmanno, J.)(Non-Precedential), the Pennsylvania Superior Court ruled that photographs of the site where the Plaintiff died taken by agents of the law firm representing a Defendant in a wrongful death action are not to be considered “communications” under the attorney/client privilege and, therefore, must be produced in discovery.

According to the Opinion, the widow of the decedent filed a lawsuit alleging that her husband was killed as a result of the alleged negligence of the Defendants. The court noted that the case arose out of an incident involving a brush fire that erupted in a wooded area near the decedent’s property. Firefighters responded and extinguished the fire. However, while the firefighters were clearing their equipment from the scene, the decedent walked into the area and came into contact with a fallen powerline, which electrocuted him to death. 

During the course of discovery, the Plaintiff requested photographs to be produced by the Defendant. The Defendant asserted that the photographs were protected by the attorney/client privileged and/or the attorney work product doctrine. 

The Superior Court agreed with the trial court’s findings that the photographs at issue were merely a depiction of the accident scene and did not constitute anything that the client or an agent of the client was “communicating” to counsel. 

The appellate court additionally indicated that it was not persuaded by the Defendant’s contention that the photographs revealed the attorney’s agent’s impressions of the scene. It was noted that the photographs, in the absence of any notations by counsel or the counsel’s agents, did not provide any more factual information about the scene of the accident that could be deemed to be privileged.. 

In the end, the Defendants were required to produce the photographs in discovery. 

Anyone wishing to review a copy of this Non-Precedential decision may click this LINK.

Source: Article: “Photos of Accident Scene Not ‘Communications’ Protected by Privilege: Court,” by P.J. D’Annunzio Pennsylvania Law Weekly (Oct. 27, 2020).

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