Pennsylvania Superior Court Quashes Appeal on Discovery Dispute Over Claim of Privilege as Premature

In the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018 (Pa. Super. June 25, 2021)(en banc), the court addressed discovery issues in terms of whether a trial court impermissibly ordered the production of claims file materials from the carrier to the court for an in camera inspection where the carrier was asserting that the materials at issue were protected by the attorney-client privilege and the work product doctrine.

Following a review of the matter, the court ended up quashing the appeal on the basis of the Collateral Order Rule.

This Opinion contains a nice summary of the current status of the Collateral Order Rule in Pennsylvania.

With respect to this particular case, the court noted that, when a discovery request has been made that, on its face, seeks protected materials, and the responding party clearly sets forth facts that leave no doubt as to the applicability of any privilege, an in camera review is not permitted and doing so would violate the privilege.

Where, however, a discovery request is made and the assertion of a privilege by the responding party and/or the proofs offered by the requesting party render a trial court unable to determine and issue a privilege, an in camera examination is appropriate and fully supported by the case law.

The Superior Court noted that this approach strikes an appropriate balance between preserving privilege and protecting a requesting party’s right to discoverable material.

In this matter, the court concluded that the discovery requests made, and the responding party’s responses and objections made thereto, did not provide the trial court with enough information to decide whether any of the requested documents were indeed subjected to a privilege. As such, the Superior Court ruled that the trial court had appropriately ordered an in camera inspection of the documents.

The court emphasized in its opinion that the issue before it involved a trial court Order directing a party to produce documents for an in-camera review and not any Order requiring the production of documents to the party that requested the discovery. It was emphasized that, since it was concluded in this matter that an in camera inspection is appropriate, the responding party had not lost its right to further contest the order production of any claim materials if so ordered by the trial court after the in camera inspection is completed, but before production of the opposing party. In other words, the Superior Court confirmed that, if the trial court ordered the production of the documents after the in camera review the documents, the responding party still retained the right to attempt to appeal that decision.

For full disclosure purposes, I note that I wrote the Amicus Curiae Brief on behalf of the Pennsylvania Defense Institute in this matter.

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