Gen. Turf Grass, Inc. v. Synatek, LP ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GENESIS TURF GRASS, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SYNATEK, LP, D/B/A “SYNATEK
SOLUTIONS, INC.” AND JONATHAN C.
MACNAMARA,
Appellant No. 1396 MDA 2015
Appeal from the Order Entered July 28, 2015
In the Court of Common Pleas of York County
Civil Division at No(s): 2013-SU-002913-89
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016
Appellant Jonathan McNamara appeals from the order of the Court of
Common Pleas of York County directing him to produce his attorney’s notes
and summaries from an interview with witness Randy Ratcliffe. As we agree
that such documentation is protected from disclosure as attorney work
product under Pennsylvania Rule of Civil Procedure 4003.3, we reverse the
trial court’s order in part with further directions contained in this decision.
Genesis Turf Grass, Inc. (“Respondent”) initiated this action against its
former employee, Appellant and SynaTek L.P., d/b/a SynaTek Solutions, Inc.
(“SynaTek”), alleging that Appellant breached a non-competition agreement
when he began working for SynaTek. Appellant responded by filing an
action alleging that Respondent violated the Pennsylvania Wage and
Collection Law when it failed to pay Appellant the full amount of commission
*Former Justice specially assigned to the Superior Court.
J-S14032-16
he was due under the parties’ contract. The two cases were consolidated by
the trial court.
Upon beginning the discovery phase of trial, the parties scheduled the
deposition of Randy Ratcliff, who was also a former employee of Respondent
and a current employee of SynaTek. Respondent argued that Appellant was
not due any additional commission as he agreed to split his commissions
with Ratcliff, an allegation which Appellant denies. Appellant’s attorney, M.
Jason Asbell, Esq., admits that he met with Ratcliff prior to the deposition to
discuss claims which Ratcliff could potentially bring against Respondent.
At Ratcliff’s June 9, 2015 deposition, Ratcliff initially stated that he had
not met with anyone prior to giving the deposition. After a break in the
deposition, Ratcliff clarified that he had spoken to Atty. Asbell before the
deposition. Atty. Asbell then invoked the attorney-client privilege with
respect to any conversation he had with Ratcliff.
On July 13, 2015, Respondent filed its “Motion to Compel the
Testimony of Randy Ratcliff, [Appellant], and the Production of Attorney
Asbell’s Notes.” Respondent asked the trial court to compel the deposition
of Ratcliff in regards to his conversations with Atty. Asbell and order the
production of “any and all notes from [Atty. Asbell’s] meeting with Mr.
Ratcliff.” Respondent’s Motion to Compel, 7/13/15, at 6. Appellant filed a
response, arguing that counsel’s conversations with Ratcliff were protected
by attorney-client privilege and his notes and summaries of his interview of
Ratcliff were protected under the work product doctrine.
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On July 28, 2015, the trial court heard oral argument on Respondent’s
motion. In a subsequent order, the trial court granted Respondent’s motion
to compel Ratcliff’s testimony and ordered the “production of documents
with respect to the conversation between Attorney Asbell and Mr. Ratcliff.”
Order, 7/29/15, at 2. The trial court indicated in its order that the attorney-
client privilege did not apply, but did not discuss the applicability of the work
product doctrine. However, although not memorialized in the trial court’s
order, the trial court indicated at the hearing that Appellant could redact
from Attorney Asbell’s notes any of counsel’s mental impressions or legal
positions. N.T., 7/28/15, at 27-28. Appellant filed a timely notice of appeal
and complied with the trial court’s directions to file a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).
On appeal, Appellant raises one issue for our review:
Whether [Appellant’s] Counsel should be ordered to produce
attorney memoranda, notes, and summaries of discussions with
Mr. Ratcliff to opposing counsel when Pa.R.C.P. 4003.3 and its
comment explicitly protect such documents from disclosure to
opposing counsel?
Appellant’s Brief at 3.
Before we reach the merits of Appellant’s argument, it is essential to
determine whether this Court has jurisdiction over this appeal. Pennsylvania
law provides that an appeal is proper in the following instances:
[a]n appeal may be taken from: (1) a final order or an order
certified as a final order (Pa.R.A.P. 341); (2) an interlocutory
order as of right (Pa.R.A.P. 311); (3) an interlocutory order by
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permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4)
a collateral order (Pa.R.A.P. 313).
Veloric v. Doe, 123 A.3d 781, 784 (Pa.Super. 2015) (citation omitted).
Appellant claims the trial court’s discovery order is subject to
immediate appeal as a collateral order pursuant to Rule 313(b). We agree.
Rule 313(b) defines a collateral order as an order that 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.” Pa.R.A.P. 313(b). While “most discovery orders are
deemed interlocutory and not immediately appealable because they do not
dispose of the litigation…[,] certain discovery orders, particularly those
involving ostensibly privileged material, have been found to be immediately
appealable as collateral orders pursuant to Pa.R.A.P. 313.” Veloric, 123
A.3d at 784 (citations omitted). See also Rhodes v. USAA Cas. Ins. Co.,
21 A.3d 1253, 1258 (Pa.Super. 2011) (stating “discovery orders involving
purportedly privileged material are appealable because if immediate
appellate review is not granted, the disclosure of documents cannot be
undone and subsequent appellate review would be rendered moot”). As
Appellant alleges that the trial court’s discovery order compels the disclosure
of attorney work product, we find Appellant has appealed a collateral order
which may be subject to our review.
In reviewing Appellant’s claim that the trial court’s discovery order was
overly broad, our standard of review is as follows:
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Whether the attorney-client privilege or the work product
doctrine protects a communication from disclosure is a question
of law. This Court's standard of review over questions of law is
de novo, and the scope of review is plenary. Our review of a
discovery order, as well as a trial court's order imposing
sanctions, requires the application of an abuse of discretion
standard.
Saint Luke's Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540 (Pa.Super.
2014), appeal denied, 114 A.3d 417 (Pa. 2015).
Appellant limits his claim to challenge the propriety of the trial court’s
discovery order with respect to the work product doctrine.1 Pennsylvania
Rule of Civil Procedure 4003.3 codifies the work product doctrine and states
in relevant part:
Subject to the provisions of Rules 4003.4 and 4003.5, a party
may obtain discovery of any matter discoverable under Rule
4003.1 even though prepared in anticipation of litigation or trial
by or for another party or by or for that other party's
representative, including his attorney ... insurer or agent. The
discovery shall not include disclosure of the mental impressions
of a party's attorney or his conclusions, opinions, memoranda,
notes or summaries, legal research or legal theories. With
respect to the representative of a party other than the party's
attorney, discovery shall not include disclosure of his mental
impressions, conclusions, or opinions respecting the value or
merit of a claim or defense or respecting strategy or tactics.
Pa.R.C.P. 4003.3. The Comment to Rule 4003.3 provides further
clarification that is particularly relevant to this case: “[u]nder the Rule, a
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1
As noted above, the trial court also rejected Appellant’s claim that the
attorney-client privilege protected such documents from disclosure. As
Appellant elected not to appeal this specific finding, we need not review this
claim further.
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lawyer's notes or memoranda of an oral interview of a witness, who signs no
written statement, are protected.” Comment to Pa.R.C.P. 4003.3. Cf.
Commonwealth v. Williams, 624 Pa. 405, 428-29, 86 A.3d 771, 785
(2014) (noting that the Pennsylvania Rules of Criminal Procedure “vest[]
discretion in the trial court to order pre-trial disclosure of [attorney] notes,
but significantly, only those notes that are a “substantially verbatim” record
of a witness's statement; an attorney's imprecise summary, selected
statements, interpretations, or recollections, are not subject to disclosure
under the rule”).
This Court has explained that the protection against the discovery of
work product is designed to “shield the mental processes of an attorney,
providing a privileged area within which he can analyze and prepare his
client's case. The doctrine promotes the adversary system by enabling
attorneys to prepare cases without fear that their work product will be used
against their clients.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1062 (Pa.Super.
2008) (citation omitted). The United States Supreme Court established the
work-product doctrine in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385,
91 L. Ed. 451 (1947) to protect the mental impressions, conclusions, notes,
memoranda, theories and research of an attorney from disclosure to
opposing counsel during discovery. In near identical factual circumstances,
the Supreme Court found it was improper for the District Court to order the
disclosure of the defense attorney’s private documentation and personal
memoranda of witness interviews taken in preparation of litigation without
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requiring the plaintiff to establish adequate reasons to justify production,
emphasizing:
[h]istorically, a lawyer is an officer of the court and is bound to
work for the advancement of justice while faithfully protecting
the rightful interests of his clients. In performing his various
duties, however, it is essential that a lawyer work with a certain
degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel. Proper preparation of a client's case
demands that he assemble information, sift what he considers to
be the relevant from the irrelevant facts, prepare his legal
theories and plan his strategy without undue and needless
interference. That is the historical and the necessary way in
which lawyers act within the framework of our system of
jurisprudence to promote justice and to protect their clients'
interests. This work is reflected, of course, in interviews,
statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and
intangible ways — aptly though roughly termed by the Circuit
Court of Appeals in this case (153 F.2d 212, 223) as the ‘Work
product of the lawyer.’ Were such materials open to opposing
counsel on mere demand, much of what is now put down in
writing would remain unwritten. An attorney's thoughts,
heretofore inviolate, would not be his own. Inefficiency,
unfairness and sharp practices would inevitably develop in the
giving of legal advice and in the preparation of cases for trial.
The effect on the legal profession would be demoralizing. And
the interests of the clients and the cause of justice would be
poorly served.
Id. at 510-11, 67 S. Ct. at 93-94, 91 L. Ed. 451.
In the instant case, the trial court ordered Appellant to produce the
“documents with respect to the conversation between Attorney Asbell and
Mr. Ratcliff.” Order, 7/28/15, at 2. While the order stated that the
attorney-client privilege did not prevent disclosure of this information, the
trial court’s order fails to address the fact that protected work product
material may be at issue. Although the trial court order suggested on the
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record at the hearing on Respondent’s motion to compel that Appellant could
redact from Attorney Asbell’s notes any of counsel’s mental impressions or
legal positions, the trial court fails to recognize that counsel’s notes may not
contain any discoverable material such as verbatim statements made by
Ratcliff, but simply be counsel’s personal recollection and summary of the
interview.
In reviewing such a discovery request, the party invoking the privilege
must “initially set forth facts showing that the privilege has been properly
invoked; then the burden shifts to the party seeking disclosure to set forth
facts showing that disclosure will not violate the [] privilege, e.g., because
the privilege has been waived or because some exception applies.” T.M.,
950 A.2d at 1063. Accordingly, upon remand, the trial court may conduct in
camera review of the documents sought in discovery to assess whether they
contain discoverable material. As a result, we vacate the trial court’s July
28, 2015 order in part with respect to its direction that documents related to
Attorney Asbell’s conversation with Ratcliff be produced without limitation.
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Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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