Superior Court Addresses the Parameters of the 'Common Interest Privilege' Under the Related Attorney-Client Privilege

In the case of Solid Waste Services, Inc. v. Ember Partners, LP, No. 1674 EDA 2025 (Pa. Super. June 9, 2026 Lazarus, P.J., Panella, P.J.E., and Stevens, P.J.E.) (Op. by Panella, P.J.E.), the Superior Court addressed discovery issues in a civil litigation dispute.

A primary issue addressed was whether a trial court Order granting a Motion to Compel production of documents withheld by a Defendant should be affirmed.

On appeal, the Defendant that was subject to the Motion to Compel was relying upon the somewhat novel “common interest” privilege to contend that they were legally entitled to withhold certain requested documents under a related attorney-client privilege argument

On appeal, the Superior Court noted that it agreed with the trial court’s findings that, while there may have been a common interest between the applicable parties earlier in the negotiations and dealings between the parties, the record revealed that there was no evidence of a common interest at the times relevant to the subject lawsuit. 

The Superior Court also found that the Defendant that was subject to the Motion to Compel Order did not meet their burden of proving the existence of an agreement to share the common interests privilege at any time. 

Accordingly, the Superior Court affirmed the trial court finding that the common interest doctrine did not protect attorney-client communications shared with a third-party because the Defendant at issue failed to prove an agreement to pursue a shared legal strategy and also failed to show any continuing common legal interest at the relevant times in the lawsuit.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (June 30, 2026).

Source of image:  Photo by Sasun Bughdaryan on www.unsplash.com.

Superior Court Affirms Order Compelling Discovery of Notes of Interviews Where No Attorneys Were Involved in the Interviews

In the case of King v. Kappa Sigma Fraternity, No. 55 MDA 2024 (Pa. Super. Jan. 13, 2025 Stabile, J., Olson, J., and Stevens, P.J.) (Op. by Stabile, J.), the court affirmed a trial court’s entry of an Order granting a Motion to Compel in this interlocutory appeal on a discovery issue involving the attorney work product privilege and attorney-client privilege.

This case arose out of alleged hazing incidents that allegedly resulted in harm to the Plaintiff.

In its decision, the Pennsylvania Superior Court addressed whether handwritten witness interview notes were properly compelled to be produced by a Defendant sorority.  According to the Opinion, the notes were factual summaries of statements made by the persons interviewed by representatives of the sorority.

The court reaffirmed the well-settled rule that a party asserting a privilege in support of a refusal to produce discovery bears the burden of establishing the validity of the assertion of that privilege.

Here, the court found that the interview notes were not created by or at the request of an attorney, but rather, were written by the Defendant fraternity’s officers. The court confirmed that the record lacked any evidence of an attorney’s role in the creation of the notes of the interviews.

Moreover, nothing established that the notes were prepared at counsel’s direction.

The court also noted that the attendance of non-legal officers of the fraternity at the interviews additionally precluded the privilege from applying.

The court also noted that the notes did not reflect any legal advice being provided. Nor were the persons interviewed, who were fraternity members, informing their attorneys of anything during the course of the interviews.

As such, the appellate court affirmed the trial court’s entry of an Order compelling the production of the notes of interviews in question.

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

Attorney-Client Privilege Did Not Attach With Ploy Of Routing Documents Through an Attorney

In the case of HU.S. v. CVS ealth Corp., No. 2:16-CV-01582-GAM (E.D. Pa. Aug. 15, 2024 McHugh, J.), the court addressed the applicability of the attorney-client privilege asserted against discovery requests in a civil litigation matter involving an action against the retail pharmacy chain.

After reviewing the documents in question and concluding that a majority of the communications did not relate to any legal advice or questions that required the information to be identified as privileged, the court granted Plaintiff’s Motion to Compel the production of the documents in question.

According to the Opinion, the documents at issue, involve business communications over CVS’ shipping processes.

The court noted that the broad claim of attorney client privilege asserted by the Defendant was not proper in this case given that such protections are not automatically provided simply because documents may be routed through an attorney. The court reiterated that the documents at issue did not contain or reflect legal advice or request for legal advice and did not provide any indication that they were prepared in anticipation of litigation of any kind.

Judge McHugh noted that the “ploy” of using an attorney as an intermediary with another party for what is clearly an exchange of business information should not be endorsed by a court to serve as a means for a party to assert the attorney client privilege.

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

Source: “Article – Federal Judge Rejects CVS’ Attorney-Client Privilege Claims, Orders Retailer To Turn Over Communications In Qui Tam Action,” By Riley Brennan The Legal Intelligencer (Aug. 15, 2024).

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).

"Psychological Autopsy" Report Related to Inmate Suicide Ruled Discoverable In Case Against Prison

In the case of Williams v. The GEO Group, Inc., No. 396 E.D.A. 2021 (Pa. Super. Aug. 24, 2022 Dubow, J., McLaughlin, J., and King, J.) (Op. by McLaughlin, J.), the court affirmed the trial court’s granting of a Plaintiff’s Motion to Compel discovery of a “psychological autopsy” report that the Defendant prepared after a prison inmate’s suicide.

This case arose out of the Plaintiff's decedent's suicide while an inmate in a private prison owned by the Defendant.    

In discovery, the Defendant had provided the Plaintiff with all requested documentation except a report called a "psychological autopsy."  The Defendant claimed that the document was protected as being privileged as a peer review document, as a work product document, and due to the attorney-client privilege.

The court found that this report was not privileged under the Peer Review Act.

The court additionally found that the report was not privileged under the scope of Pa. R.C.P. 4003.5 and was relevant under Pa. R.C.P. 4003.1.  As such, the appellate court affirmed the trial court's granting of a motion to compel the production of the report at issue.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 15, 2022).

Source of image:  Photo by Rodnae Productions on www.pexels.com.

Pennsylvania Superior Court Addresses Attorney-Client Privilege and Attorney Work Product Privilege

In the case of Carlino E. Brandywine, L.P. v. Brandywine Vill. Assoc., No. 1194 EDA 2019 (Pa. Super. July 23, 2021 Stabile, J., McLaughlin, J., Stevens, P.J.E.) (Op. by Stabile, J.), the Pennsylvania Superior Court vacated a trial court’s decision in a land dispute matter and remanded a case for further proceedings, after ruling that, where Defendants raise the affirmative defenses of reliance upon advice of counsel and counsel’s good faith reliance upon applicable law, the Defendants opened the door to a waiver of the attorney-client and the work product privileges.

However, the Pennsylvania Superior Court limited the trial court’s decision in this matter by finding that the trial court erred in finding a blanket privilege waiver and in assuming that a waiver of the attorney-client privilege would also necessarily waive the attorney work product protection.

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


Source: “Digest of Regional Opinion” Pennsylvania Law Weekly (August 17, 2021).

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.

Report of Consulting Firm Retained By Defendant After Industrial Accident Ruled Discoverable

In the case of Vimelson v. Johnson Mathey, Inc., 2021 Pa. Super. 20 (Pa. Super. Feb. 17, 2021 Bender, P.J.E., Lazarus J., Stevens, P.J.E.) (Op. by Lazarus, J.), the Pennsylvania Superior Court affirmed the trial court’s decision that a Defendants’ consulting firm's report, which was prepared after an employee died in an industrial accident, was discoverable because the consulting firm was not hired, and their report was not prepared, in anticipation of litigation. 

According to the Opinion, after the decedent fell to his death while working at a plant, the Defendants retained a consulting firm five (5) days after the event to conduct a site safety investigation and determine the cause of the accident.

During the course of discovery, the Plaintiff became aware of the report and filed a Motion to Compel to secure the same. The Defendants argued that the report was prepared in anticipation of litigation and was, therefore, privileged. The Defendants asserted that the consulting firm was a non-testifying expert consultant and no exceptional circumstances existed to entitle the Plaintiff to access to the report.

The Plaintiff responded by arguing that it was the Defendants, and not the Defendant’s attorneys, who had hired the consulting firm. The Plaintiffs also asserted that the report by the consulting firm had not been prepared in anticipation of litigation.

The Defendants had also filed a Motion for a Protective Order in response to the Motion to Compel.

As noted, the Superior Court affirmed the trial court’s ruling that the report was discoverable.  The trial court had agreed that the consulting firm had not been retained in anticipation of litigation.  The appellate court agreed that it appeared from the record that the consulting firm had been retained for a business purpose, that is, to find the cause of the accident and to enable the Defendant to implement changes to prevent such accidents from reoccurring in the future.

The court ruled that the fact that litigation may have been foreseen did not, in and of itself, support a ruling that the discovery should be precluded.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 2, 2021).

Participated in First Ever Virtual/Online En Banc Pennsylvania Superior Court Argument Session

On June 3, 2020, I participated in Pennsylvania Superior Court history by attending the first ever virtual/online en banc argument session for this Court.

The case was Fisher v. Erie Insurance, which involved a request for the appellate court to review an order of the trial court calling for the completion of an in camera review of documents created by Erie's counsel while assisting the carrier in the investigation and evaluation of a UIM claim.  Erie had objected to the request for the production of the documents by asserting the attorney-client privilege and the privilege afforded by the attorney work product doctrine.

I drafted the amicus curiae brief submitted on behalf of the Pennsylvania Defense Institute.  Here is a LINK to the amicus curiae Brief I wrote on behalf of Erie Insurance. 

Erie Insurance is being represented in the underlying matter by the Pittsburgh law firm of Robb, Leonard, Mulvihill, LLP, and the appellate argument for Erie Insurance was handled by Attorney Lou Long of the Pittsburgh office of Thomas, Thomas & Hafer. 

The Plaintiffs were represented by Attorney Joseph J. Nypaver of Holidaysburg, PA. 

The en banc court took the matter under advisement.

Superior Rejects Trial Court's Allowance of Provisional 'Attorneys' Eyes Only" Review of Privileged Documents in Discovery

In the business dispute civil litigation case of CLL Academy Inc. v. Academy House Council et al., No. 446 EDA 2019 (Pa. Super. April 6, 2020 Bowes, J. Olson, J., Ford Elliott, P. J.E.)(Op. by Bowes, J.), the court issued a decision that, as precedent, serves to bar trial judges from allowing opposing counsel to view potentially privileged documents when holding hearings to determine if those materials should be released when sought in discovery.

The Superior Court's decision overruled a Philadelphia County trial judge's order that a defendant be required to provide a plaintiff with documents to review on a provisional "attorneys' eyes only" basis as the two sides hammered out a dispute over whether or not the material was shielded by work product protections.

The Superior Court ruled that such a designation would be incompatible with Pennsylvania civil procedure and law regarding the attorney-client privilege and work product protections.

The Superior Court found the 'attorneys' eyes only' procedure allowed by the trial court "to be wholly inconsistent with the in camera review sanctioned by our rules of civil procedure for evaluating claims of privilege."

Anyone wishing to review this decision may click this LINK.

Notes Written by Defendant in Med Mal Case in Anticipation for Deposition Not Protected From Disclosure

In the case of Ford-Bey v. Professional Anesthesia Services of M.A., LLC, 2020 Pa. Super. 42 (Pa. Super. Feb. 20, 2020 Bowes, J., Olson, J., Ford Elliot, P.J.E.) (Op. by Bowes, J.), the court granted a Plaintiff’s Motion to Compel the disclosure of notes written by a medical personnel defendant on a relevant medical chart in a medical malpractice matter.

The court noted that annotations made on a relevant medical chart by the Defendant at the suggestion of his attorney did not amount to any privileged or confidential information. 

The court reiterated the rule of law that the party asserting the attorney-client privilege bears the burden of establishing that the privilege attaches.

The court found that the privilege did not attach here where the notes by the client were not made for the defense attorney’s use and were not even shown to the attorney. As such, the court found that these notes were not communications between a client and that person‘s attorney that could be deemed to be privileged. 

The court also rejected any notion that the notes made by the Defendant were protected by the attorney work product doctrine.  The court ruled in this fashion given that the only mental impressions contained in the notes were those of the Defendant himself.   The court ruled that mental impressions of a client are not automatically protected from disclosure under the attorney work product doctrine. 

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

Formal Opinion: "Ethical Obligations For Lawyers Working Remotely"

Here is a LINK an April 10, 2020 Formal Opinion issued by the Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility relative to "Ethical Obligations For Lawyers Working Remotely."

The Opinion emphasizes the need to protect client confidentiality, for attorneys to exhibit competence with practicing law virtually, and with respect to attorneys treating one another civilly in this new era of the practice.

Ethical Opinion On Including Clients as "CC" On Emails To Opposing Counsel

The Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility has recently published Formal Opinion 2020-100 addressing the issues that may arise as a result of sending a client a copy of email communications by the attorney with opposing counsel. It is noted that the use of CC, BCC, and "Reply to All" in emails could give rise to the following ethical issues:

1. Instances where including a client's email address in the CC line may disclose confidential information about the representation in violation of Rule 1.6;

2. Instances where opposing counsel may reply to all in the response to a distribution chain that includes opposing counsel's client and thereby communicate with a party represented by another attorney;

3. Whether the use of a broadcast email will create an unacceptable risk that a client will respond to the entire distribution list and disclose privileged and/or confidential information;

4. Whether sending an email to opposing counsel with a CC or BCC to the attorney's client may create a risk that the client will respond to all and that the opposing attorney will deem such a response as consent for the opposing attorney to communicate directly with the client; and

5. Whether counsel who receives privileged information on an email chain created by the use of CC's or BCCs has a duty to report the disclosure of that privileged information to opposing counsel.

The ultimate conclusion of the Formal Opinion is that "Attorneys risk divulging attorney client confidential information and privileged information when they communicate with opposing counsel and include their clients on the same email. Attorney recipients of such email communications may be deemed to violate the no contact rule if they, in turn, reply to all and otherwise directly contact an adverse client without the other attorney's express consent except in situations where it is objectively reasonable to infer consent from the circumstances."

The Best Practices Tip from this ethical opinion is the recommendation that clients be emailed information in entirely separate emails wherever possible.

Please click HERE to read the entire Formal Opinion 2020-100.

I send thanks to Attorney Charles Wasilefski, the Executive Director of the Pennsylvania Defense Institute for bringing this ethical opinion to my attention.

THE 2019 TORT TALK TOP TEN

Here is the Tenth Annual 2019 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year or so as highlighted in Tort Talk blog posts.

If you wish to view the actual Tort Talk post on any of the following cases or topics, or the actual Opinion, please go to TortTalk.com and type the name of the Plaintiff in the case in the Search Box in the upper right hand corner of the blog.  There should be a Link to the actual Opinion within the blog post itself.


10. Palmiter v. Commonwealth Health Systems, Inc., No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019 Nealon, J.)

In a case of first impression, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of whether the Medical Marijuana Act creates an implied private cause of action or a medical assistant who was terminated by her health care employers for prescribed use of medical marijuana while not working in her place of employment. The court recognized such a cause of action and allowed the claim to proceed.


9. Lack of Appellate Guidance on Post-Koken Issues Continues

Despite the passage of well over a decade of time since the Koken decision was handed down in 2005, there is still a continuing trend of a lack of any concrete appellate guidance on any of the many novel issues created by this form of litigation from the pleadings stage to trial. The lack of appellate guidance is due to the fact that most of the cases in this area of law continue to be resolved by one form of ADR or another. The hope remains that those cases that do go up the appellate ladder will result in published decisions by the Superior Court and grantings of allocatur by the Supreme Court.

Here is a quick LINK to the Post-Koken Scorecard on Tort Talk.


8. Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2019)


The Pennsylvania Supreme Court, in a 4-3 decision, ruled in favor of the Plaintiff’s argument that MCARE's statute of repose was unconstitutional. The rationale of the majority Opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The Court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution's guarantee of open access to the Courts.


7. Livingston v. Greyhound Lines, Inc., No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazarus, J., Kunselman, J.) (Op. by Colins, J.)

In April of 2019, the Pennsylvania Superior Court provided its latest pronouncement on the law on the admissibility of intoxication evidence in civil litigation matters. The Court reiterated the rule of law that evidence of alcohol or drug consumption by a person involved in an accident is admissible only where there is sufficient evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.


6. Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.)

The court dismissed a Plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the Complaint. This is one of many Federal Court decisions evidencing a continuing trend towards forcing Plaintiffs’ to avoid conclusory allegations in bad faith matters and instead requiring the pleading of specific acts of alleged bad faith.  There were also a number of decisions handed down over the past year that confirmed that the extension of an alleged low ball offer followed by a settlement or an award of a much higher number does not necessarily equate to bad faith -- click HERE to view those Bad Faith - Low Ball Offer cases.


5. Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019 Bowes, J., Olson, J., Stabile, J.) (Op. by Bowes, J.) (Olson, J, dissenting)

The Pennsylvania Superior Court ruled that a trial court erred in dismissing the Plaintiff’s personal injury action against a defendant motorist for improper service.  Over the past year, a number of decisions have been handed down at both the trial court and appellate level analyzing the application of the Lamp v. Heyman line of cases and their progeny.  Click HERE to view a compilation of those cases.


4. Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019 Bowes, J., McLaughlin, J., Stabile, J.) (Op. by McLaughlin, J.)(Stabile, J., Concurring)

The Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex.  The Superior Court ruled in this fashion even though the Plaintiff only litigated the case under the consumer expectation test. The Court found that, where the defense presented evidence that also implicated the risk-utility test, a jury instruction was warranted in that regard as well.


3. Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., Colins, J.)   (Dissenting Op. by Lazarus, J.).

In Farese, the Pennsylvania Superior Court held, in what appears to be the first appellate decision of its kind, that future medical expenses need not be reduced in accordance with Act 6 before being presented to the jury at trial in an auto accident case. This decision did not impact the rule that past medical expenses incurred in motor vehicle accident cases have to be reduced before being presented to a jury.


2. BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019)

The Pennsylvania Supreme Court offered its latest pronouncement on attorney work product issues in June of 2019. The Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine. The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

1. Gallagher v. GEICO, 201 A.3d 131 (Pa. Jan. 23, 2019)

The Pennsylvania Supreme Court held that the Household Exclusion contained in a Geico policy violated the MVFRL was invalid because it served as a “de facto waiver” of stacked coverage. The Court suggested that its decision in Gallagher not only applied to that case, but should also be read to eradicate the Household Exclusion across the board.  While a number of subsequent Federal Court decisions served to expand the scope of the Gallagher decision, at least one more recent trial court decision (Nationwide v. Ryman) has suggested that the Gallagher decision should be limited to its facts.

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.

Discovery of Communications With Divorce Attorney Allowed Relative to Loss of Consortium Claims

In the case of Corey v. Wilkes-Barre General Hospital, No. 1980 MDA 2017 (Pa. Super. Sept. 23, 2019 Ford Elliot, J., Gantman, J., Nichols, J.) (Op. by Ford Elliot, J.) (concurring and dissenting Op. by Nichols, J.) the Pennsylvania Superior Court affirmed a decision by a Luzerne County judge allowing for the disclosure for certain divorce records in a wrongful death lawsuit against a hospital.

According to the Opinion the Plaintiff-wife filed a wrongful death lawsuit against the hospital over the death of her then estranged husband. As part of that lawsuit, the Plaintiff-wife filed a loss of consortium claim.

When the Defendants sought to discovery information contained in the divorce proceedings that were active at the time the estranged husband passed away, the Plaintiffs asserted that any communications between the Plaintiff-wife and her attorney in those proceedings were protected by the attorney/client privilege.

The Pennsylvania Superior Court affirmed the ruling by a Luzerne County judge that the loss of consortium claim created an exception to the attorney/client privilege relative to the disclosure of the communications between the Plaintiff-wife and her attorney in the separate divorce proceedings.

In its Opinion, the Superior Court emphasized that, in order to recover on a loss of consortium claim, the spouse who brings that claim must demonstrate and injury to the marital relationship that deprives him or her of the companion, society, affection and sexual relations that spouses share prior to the injury and that, but for the injury, the two would have continued to share.

The Superior Court noted that, where an alleged marital injury is suffered during the pendency of a divorce, the spouse bringing a claim for loss of consortium places the marital relationship at issue because, in order to prove a loss of consortium, the divorcing spouse must first prove the existence of consortium.

In this regard, the appellate court noted that a spouse cannot hide behind the attorney/client privilege to protect communications he or she may have had with a divorce attorney when it is that spouse who placed the marital relationship, and consequently, the state of the divorce, at issue in the first place by including the claim for loss of consortium. 

The Superior Court noted that, to rule otherwise and to allow for the privilege to be asserted, would “frustrate the administration of justice by given [the spouse] an unfair advantage and by prejudicing [a Defendant’s] defense of the claim.”

Anyone wishing to review Judge Ford Elliott's Majority Opinion may click this LINK.

Judge Nichols Concurring and Dissenting Opinion can be viewed HERE.

Source: Article: “Court: Divorce Records Discoverable in Cases with Loss of Consortium Claims.” By P.J. D’Annunzio of the Pennsylvania Law Weekly (September 25, 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.

Pennsylvania Supreme Court Clarifies Standard for Attorney Work Product Doctrine

In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019)(Op. by Mundy, J.) (Donohue, J., Concurring)(Wecht, J., Concurring), the Pennsylvania Supreme Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine.  

Tort Talkers may recall that the Pennsylvania Superior Court previously determined in this case that emails involving an internal investigation that were sent by a hospital’s attorney to a public relations firm were not barred from discovery under the attorney-client privilege or the work-product doctrine.  Here is a LINK to the Tort Talk blog post on that decision.

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

This matter was remanded back to the trial court for fact finding and application of the newly articulated work product waiver analysis.

Anyone wishing to review the Opinion by Justice Mundy may click this  LINK.  Click HERE to read Justice Donohue's Concurring Opinion.  Click HERE to read Justice Wecht's Concurring Opinion.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this decision to my attention.

Rule 1925 Opinion By Trial Court Issued In Newsuan Case Regarding Contact with Witnesses in Civil Litigation Matter

In the case of Newsuan v. Republic Services, Inc., No. 1248 EDA 2018 (C.P. Phila. Co. Sept. 14, 2018 Rau, J.), the trial court judge issued a Rule 1925 Opinion supporting the trial court’s prior decision on the discovery issues presented in this matter relative to the attorney client privilege and the attorney work product doctrine. 

Tort talkers may recall a prior Tort Talk blog post on the court’s original decision in this case [June 20, 2018 - click HERE to view that post].

In this matter, the court granted 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. According to the 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.  

In this more recent Rule 1925 Opinion, Judge Rau reiterated the rationale of the Court that the defendants had waived their claims by failing to assert appropriate objections before the trial court.  

Judge Rau also reiterated that the appeal has 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.  

Anyone wishing to review this decision may click this LINK.

Defense Counsel Ordered to Turn Over Information Pertaining to Potential Witnesses in a Civil Litigation Matter

In the case of Newsuan v. Republic Services, No. 00528 (C.P. Phila. Co. April 11, 2018 Rau, J.), the court granted 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.  

According to the Opinion, the Plaintiff filed the motion because of the alleged conduct of the defense lawyers in purportedly refusing to provide contact information for the potential fact witnesses in order that the defense lawyers could allegedly contact the witnesses first and interview them, and offer to represent them for free.   The trial court found that such alleged conduct compromised the fairness in the litigation process by obstructing the Plaintiff’s access to evidence.

As such, the Plaintiff’s Motion to Compel was granted.  

In her Opinion, Judge Rau noted that, because the Defendants’ lawyers admitted in court that the interviews with the witnesses were conducted prior to the Defendants’ lawyer offering to represent these witnesses, the court found that the interviews did not constitute attorney-client privilege communications.  

The court also noted that the Pennsylvania Rules of Professional Conduct require that the defense lawyers advised the witnesses of the potential conflict of interest in representing both the witnesses and the company being sued, nor did the lawyers obtain the informed consent from the fact witnesses in order to waive any potential conflicts.  

In her Order, the judge required that the defense provide the Plaintiff with the information regarding the current and former employees of the witnesses along with the notes of the interviews and all written communications.  

The court additionally ruled that the Defendants’ lawyers were disqualified from representing the former and current employee fact witnesses at a deposition or trial unless the attorneys secure a written waiver from the witnesses explaining the conflict of interest.  

The Defendants’ lawyers were also ordered to inform Plaintiff’s counsel as to which witnesses have or have not signed the written waivers of conflicts of interest. 

The defense lawyers were additionally ordered not to contact any witnesses that they had not succeeded in interviewing to date.  

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

I send thanks to Attorney William P. Corcoran, Esquire of the legal division of Septa for bringing this case to my attention.