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April 27, 2020
Recently, the Superior Court of Pennsylvania handed down two rulings involving protection from production under the attorney-client privilege and the work-product doctrine. Because these cases involved discovery orders compelling the production of allegedly privileged content, the collateral order doctrine permitted immediate appeals to the Superior Court.
CLL Academy, Inc. v. Academy House Council
In CLL Academy, Inc. v. Academy House Council, the court held that a producing party was not required to produce potentially privileged documents on an “attorney’s eyes only” basis in connection with a dispute over the attorney-client privilege and the work-product doctrine’s protection of those documents. In doing so, the court rejected the use of this heightened level of protection as a means of determining privilege disputes. The court instructed that “attorney’s eyes only” designations are appropriate to protect trade secrets and other confidential business information and are not a means for a requesting party’s attorney to develop more fully its client’s arguments challenging the validity of the other side’s assertion of privilege.
This case involved an appeal from the trial court’s order compelling the disclosure of purportedly protected privileged communications and work product to opposing counsel on an “attorney’s eyes only” basis to resolve the parties’ discovery disputes about privilege. The lower court’s ruling arose out of a motion to compel by a parking garage business (CCL) that operated underneath the Academy House condominium building (AHC) in Center City Philadelphia. CCL and AHC were parties to two separate litigation matters. One was a declaratory judgment action to decide CCL’s responsibilities to pay for certain construction costs for structural repairs that it refused to pay. The instant litigation related to CCL’s claims against AHC asserting that AHC diverted CCL’s parking customers to another garage using misrepresentations about CCL’s refusal to pay for these constructions costs.
CCL moved to compel AHC to produce 15 documents that AHC redacted and claimed were privileged communications with counsel and constituted work product. CCL maintained that the documents were not protected work product because they were communications reflecting the mental impressions of the parties, not the mental impressions of the parties’ attorneys or other representatives of the parties. CCL also argued that the documents were not protected because they related to the declaratory judgment action and were created months before CCL filed its claims in this action. CCL alleged that the documents related to AHC’s state of mind, which was at issue in this action, and so they were evidentiary and not work product. CCL asked the Discovery Master to order AHC to produce the unredacted versions of the documents for an in camera review and to recommend production of the documents with redactions to protect only legal advice or attorneys’ mental impressions.
The Discovery Master conducted an in camera review and recommended some different redactions than those AHC had applied. AHC sought reconsideration of that recommendation and requested an ex parte argument to provide additional context for the challenged content in the documents. CCL opposed an ex parte argument and instead suggested that it be a part of the argument and that AHC release the documents in question to CCL’s attorneys on an “attorney’s eyes only” basis to make an informed argument about the propriety of AHC’s privilege claims. The Discovery Master declined the private meeting with AHC and instead made its redaction recommendations to the trial court. The court then granted argument and later ordered AHC to disclose to CCL all 15 documents without any redactions on an “attorney’s eyes only” basis.
On appeal, the Superior Court reversed the trial court’s decision, instructing that the purpose of the work-product doctrine is to keep attorneys’ files from disclosure to the opposing party. Moreover, the court noted that the attorney-client privilege does not expire when representation ends and that a privileged communication made in one of the parties’ lawsuits applies equally in the other pending matter. The court instructed that a privilege log is the primary means of determining the propriety of a claim of attorney-client privilege or work-product protection. If that log is insufficient to support that claim, then an in camera review is available for the court to decide the matter. CCL provided the court with no legal authority that it was entitled to see the unredacted versions of the documents in dispute, and the court noted that it did not know of any legal support for that claim.
As a result, the Superior Court rejected the use of an “attorney’s eyes only” disclosure to CCL’s counsel for purposes of an in camera review. The court noted that such disclosures are used typically to keep adversaries from viewing and using protected trade secrets and other confidential business information. However, the court instructed that such limited disclosure to an opponent in litigation is “wholly inconsistent with the in camera review sanctioned by our rules of civil procedure for evaluating claims of privilege.” The court remanded the matter back to the trial court for reconsideration of AHC’s redactions during an in camera review without CCL’s participation.
Ford-Bey v. Professional Anesthesia Services of North America, LLC
In Ford-Bey v. Professional Anesthesia Services of North America, LLC, the court faced another challenge to the disclosure of potentially privileged information. In dispute in this case was the production of the defendant’s handwritten notes on a document. The defendant wrote these notes while preparing for his deposition and did not provide them to, or share them with, his counsel. As a result, the court held that defendant failed to satisfy the critical element of a “communication” with counsel to support privilege protection. The court also ruled that because the notes did not contain the mental impressions of defendant’s attorney or other representatives, they were not protected work product.
In this case, the Superior Court determined whether the lower court had properly compelled a defendant in a medical malpractice action to produce notes he added to a copy of decedent’s medical chart while he prepared for his deposition. During his deposition, defendant Thomas Maddaloni, a Certified Registered Nurse Anesthetist, testified that he made these notes at home and that the annotated document remained there. Counsel for the administrator of decedent’s estate requested a copy of the document, but Maddaloni refused to produce the notes based on the attorney-client privilege and the work-product doctrine.
The administrator filed a motion to compel production of Maddaloni’s notes, and the trial court granted it. Maddaloni then filed a motion for reconsideration, and the court granted it as well. During oral argument on that motion, Maddaloni’s attorney represented that Maddaloni’s notes were made “at the direction of and advice of counsel,” but acknowledged that the case record did not so reflect. The court asked Maddaloni’s attorney whether his client was relying on “any facts of that nature,” but counsel responded that his client was relying on the deposition and the current record. Counsel argued that the administrator had not satisfied his burden on the motion to compel. However, the court disagreed and ordered Maddaloni to produce the annotated medical chart. Maddaloni did not comply, and nine days after the court docketed the order, he filed a motion seeking to supplement the record with his affidavit stating that he made some of the notes in the presence of his attorney and some at home with the intention of sharing the notes with his attorney to obtain legal advice. The trial court denied Maddaloni’s motion.
On appeal, the Superior Court affirmed the lower court’s denial of Maddaloni’s motion to supplement the record, noting no abuse of discretion. The trial court granted Maddaloni’s motion for reconsideration and later considered his motion to supplement to be another motion for reconsideration, given the case posture. Seeking to add new facts to the record at that point was inappropriate, particularly considering that Maddaloni’s counsel was content to rest on the record as it existed at the time of oral argument on the motion for reconsideration. In other words, Maddaloni’s counsel failed to protect the record, and the court was not inclined to give Maddaloni another shot to satisfy the elements of his privilege claim. Had Maddaloni proffered his affidavit in a timely fashion, the lower court noted that the burden would have then shifted to the administrator to negate the privilege claim.
Finding no error of law, the Superior Court also affirmed the lower court’s ruling that Maddaloni failed to establish that his notes were protected by the attorney-client privilege or work-product doctrine. Here, the court articulated the four elements for proving the application of the attorney-client privilege and determined that Maddaloni failed to prove that he communicated or intended to communicate his notes to his attorney in connection with seeking legal advice. The court also upheld the lower court’s decision that Maddaloni had failed to establish that his handwritten notes constituted attorney work product. To constitute work product, the notes had to reflect “the mental impressions of [Maddaloni’s] attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” However, Maddaloni failed to offer a privilege log or any proof on the record that his handwritten notes contained his attorneys’ mental impressions or legal theories. As a result, the Superior Court affirmed the lower court’s decision ordering Maddaloni to produce his notes.
The Superior Court’s Standard of Review and Jurisdiction on Appeals Involving Orders to Compel the Production of Purportedly Privileged Content
Each of these cases involved the application of the attorney-client privilege or the work-product doctrine involving questions of law over which the Superior Court exercised de novo review. The Superior Court had jurisdiction over these questions of law based on the collateral order doctrine contained in Pennsylvania Rule of Appellate Procedure 313 because they involved discovery orders compelling the production of allegedly privileged content. A collateral order is “separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” The question before the Superior Court in each of these cases was whether the trial court erred as a matter of law in compelling the production of purportedly privileged information. The court came down on each side of that question in these two appeals but upheld the principles that are bedrocks of these protections from disclosure, including adherence to the elements of proof, production of privilege logs, and evidentiary support on the record.
 No. 446 EDA 2019, 2020 Pa. Super. LEXIS 291 (Pa. Super. Apr. 6, 2020)
 No. 677 EDA 2019, 2020 Pa. Super. LEXIS 143 (Pa. Super. Feb. 20, 2020)
 These four elements are:
1) The asserted holder of the privilege is or sought to become a client.
2) The person to whom the communication was made is a member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
4) The privilege has been claimed and is not waived by the client.
Id. at *11 (citing Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1027 (Pa. Super. 2015).
 Pa. R. C. P. 4003.3.
 Pa. R .A. P. 313.