Monday, April 10, 2023

Pennsylvania Superior Court Reviews Discovery Issues Involving Attorney-Client Privilege and Work Product Doctrine

In the case of Holland v. The Physical Therapy Inst., No. 1515 WDA 2021 (Pa. Super. March 17, 2023 Olson, J., Dubow, J., and Collins, J.), (Op. by Collins, J.) [non-precedential], the court addressed several discovery issues and the issue of whether an appeal from a discovery order is appropriate.

With regard to the ability of a party to appeal from a discovery order, the court noted that, generally, discovery orders are deemed interlocutory and are not immediately appealable, because they do not serve to dispose of the litigation in its entirety. 

Yet, discovery orders that require the disclosure of privilege materials are generally found to be appealable under Pa. R.A.P. 313 where the issue of privilege is separable from the underlying issues presented.

Based upon this rule of law, the court quashed the appeal in part and affirmed it in part and remanded the matter back to the trial court with further instructions.

On the substantive issues, the court noted that the appeal involved a six-part discovery order that required the Defendants to provide documents dealing with financial and investment-related matters as well as communications with counsel in this case involving a breach of contract action.

The Defendants asserted that the lower court erred by not conducting in-camera review of the disputed documents prior to making its ruling. The Defendants additionally asserted that the court committed various errors of law or abuses of discretion in its discovery order.

In this decision, the Pennsylvania Superior Court provided its latest review of the attorney-client privilege and the work product doctrine.

The Superior Court noted that the trial court, in finding that the Defendants had waived the attorney/client and the work-product privileges did not conduct any in-camera review of certain documents, despite having already conducted an in-camera review of other documents.

The court found that a remand was appropriate in light of this ambiguity. On remand, the trial court was directed to ascertain whether the Defendants waived the privileges noted and, to conduct an in-camera review of potentially privilege material before making a determination as to whether the documents at issue were indeed discoverable.

The Superior Court also noted that the trial court, on remand, must unequivocally determine whether allowing for punitive damages-related discovery is appropriate under the circumstances as required by Pa. R.C.P. 4003.7, which relates to discovery of financial information of a Defendant in a punitive damages case.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 20, 2023).

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