Meyer-Chatfield Corp. v. Bank Financial Services , 2016 Pa. Super. 147 ( 2016 )

J-S16013-16, J-S16014-16
2016 Pa. Super. 147
MEYER-CHATFIELD CORP. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT
AND DANIEL BARBAREE
Appellants
MEYER-CHATFIELD CORP. AND MEYER
CHATFIELD ADMINISTRATIVE SERVICES,
LLC
Appellees
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT No. 1576 EDA 2015
AND DANIEL BARBAREE
Appellants
Appeal from the Judgment Entered May 4, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-29858
2013-30326
2014-11331
2015-02972
-------------------------------------------------------------------------------------
J-S16013-16, J-S16014-16
MEYER-CHATFIELD CORP. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT
AND DANIEL BARBAREE
Appellants
MEYER-CHATFIELD CORP. AND MEYER
CHATFIELD ADMINISTRATIVE SERVICES,
LLC
Appellees
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT
AND DANIEL BARBAREE
Appellants
No. 1577 EDA 2015
Appeal from the Judgment Entered May 4, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-29858
2013-30326
2014-11331
2015-02972
-------------------------------------------------------------------------------------
-2-
J-S16013-16, J-S16014-16
MEYER-CHATFIELD CORP. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT
AND DANIEL BARBAREE
Appellants
_________________________________
MEYER-CHATFIELD CORP.
Appellee
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT
AND DANIEL BARBAREE
APPEAL OF JOSEPH BYRD AND DAVID
SCHWARTZ
No. 1578 EDA 2015
Appeal from the Judgment Entered June 11, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-29858
2013-30326
2014-11331
2015-02972
-------------------------------------------------------------------------------------
-3-
J-S16013-16, J-S16014-16
MEYER-CHATFIELD CORP. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT
AND DANIEL BARBAREE
Appellants
_________________________________
MEYER-CHATFIELD CORP. AND MEYER
CHATFIELD ADMINISTRATIVE SERVICES,
LLC
Appellees
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT
AND DANIEL BARBAREE
Appellants
No. 1896 EDA 2015
Appeal from the Judgment Entered May 4, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-29858
2013-30326
2014-11331
2015-02972
-4-
J-S16013-16, J-S16014-16
____________________________________________________________
MEYER-CHATFIELD CORP.
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE,
ARNOLD WINICK, WILLIAM BORCHERT IN THE SUPERIOR COURT
AND DANIEL BARBAREE OF PENNSYLVANIA
_______________________________
MEYER-CHATFIELD CORP. AND MEYER
CHATFIELD ADMINISTRATIVE
SERVICES, LLC
v.
BANK FINANCIAL SERVICES GROUP,
STEVEN GOLDBERG, DAVID PAYNE, No. 2330 EDA 2015
ARNOLD WINICK, WILLIAM BORCHERT
AND DANIEL BARBAREE
APPEAL OF JOSEPH BYRD AND DAVID
SCHWARTZ
Appeal from the Judgment Entered May 4, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-29858
2013-30326
2014-11331
2015-02972
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
OPINION BY JENKINS, J.: FILED JULY 14, 2016
These consolidated appeals are from discovery orders issued on May 4,
2015 and June 11, 2015 by the Court of Common Pleas of Montgomery
County (“trial court”). In the appeals of the Bank Financial Services Group
appellants (Bank Financial Services Group, Steven Goldberg, David Payne,
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J-S16013-16, J-S16014-16
Arnold Winnick, William Borchert, and Daniel Barbaree) (collectively “the
BFS appellants”),1 we quash the appeal at 1576 EDA 2015; we quash in part
and reverse and remand in part at 1577 EDA 2015; and we quash the
appeal at 1896 EDA 2015. In the appeals of David Schwartz and Joseph
Byrd, we quash in part and affirm in part at 1578 EDA 2015, and we quash
their appeal at 2330 EDA 2015.
FACTUAL AND PROCEDURAL HISTORY
Background and pleadings. Meyer-Chatfield is a company in the
business of providing bank-owned life insurance (“BOLI”), a highly
specialized financial product. BOLI is a single premium life insurance
contract specifically designed for banks to earn tax-free income, among
other benefits. Since its beginnings in 1992, Meyer-Chatfield has been
engaged in the design, marketing, sales and servicing of BOLI products to
the banking community nationwide.
Goldberg, Payne, Winnick, Borchert, Barbaree, Schwartz and Byrd
were employees of Meyer-Chatfield who left the company to work for Bank
Financial Services Group, a direct competitor of Meyer-Chatfield. During
their employment with Meyer-Chatfield, the individuals signed restrictive
covenants promising, inter alia, not to compete with Meyer-Chatfield upon
____________________________________________
1
To be clear, we use “BFS” as the collective designation for all appellants
except Joseph Byrd and David Schwartz.
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J-S16013-16, J-S16014-16
their termination or separation from the company or provide confidential
information about Meyer-Chatfield to any other individual or entity.
On October 2, 2013, Meyer-Chatfield filed a complaint in the trial court
at No. 2013-29858 naming Bank Financial Services Group, Goldberg and
Payne as defendants. The complaint alleged that Payne and Goldberg,
together with Bank Financial Services Group, formed and executed a plan to
take Meyer-Chatfield personnel, clients, and confidential and proprietary
information, in violation of the individual defendants' contractual and
fiduciary obligations to Meyer-Chatfield, and in an unfairly competitive
manner.
On October 7, 2013, Bank Financial Services Group, Goldberg, the
Steven Goldberg Sole Proprietorship, Winick, and Payne sued Meyer-
Chatfield seeking declaratory judgment and a special/preliminary injunction.
They sought a declaration that the restrictive covenants and covenants not
to compete contained in Goldberg’s contract were void and unenforceable,
alleged breach of contract by Meyer-Chatfield, asserted a breach of the duty
of good faith and fair dealing, and sought to enjoin Meyer-Chatfield’s alleged
tortious interference with existing and prospective business relationships in
addition to defamation and libel.
On October 18, 2013, the trial court consolidated these actions at No.
2013-30326.
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J-S16013-16, J-S16014-16
Arnold Winnick, William Borchert, and Daniel Barbaree) (collectively “the
BFS appellants”),1 we quash the appeal at 1576 EDA 2015; we quash in part
and reverse and remand in part at 1577 EDA 2015; and we quash the
appeal at 1896 EDA 2015. In the appeals of David Schwartz and Joseph
Byrd, we quash in part and affirm in part at 1578 EDA 2015, and we quash
their appeal at 2330 EDA 2015.
FACTUAL AND PROCEDURAL HISTORY
Background and pleadings. Meyer-Chatfield is a company in the
business of providing bank-owned life insurance (“BOLI”), a highly
specialized financial product. BOLI is a single premium life insurance
contract specifically designed for banks to earn tax-free income, among
other benefits. Since its beginnings in 1992, Meyer-Chatfield has been
engaged in the design, marketing, sales and servicing of BOLI products to
the banking community nationwide.
Goldberg, Payne, Winnick, Borchert, Barbaree, Schwartz and Byrd
were employees of Meyer-Chatfield who left the company to work for Bank
Financial Services Group, a direct competitor of Meyer-Chatfield. During
their employment with Meyer-Chatfield, the individuals signed restrictive
covenants promising, inter alia, not to compete with Meyer-Chatfield upon
____________________________________________
1
To be clear, we use “BFS” as the collective designation for all appellants
except Joseph Byrd and David Schwartz.
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J-S16013-16, J-S16014-16
First dispute. On October 21, 2014, Meyer-Chatfield filed a motion to
quash (1) subpoenas to attend preliminary injunction hearings that BFS
served on several non-parties and (2) a notice to attend the preliminary
injunction hearing that the BFS appellants served on Meyer-Chatfield’s
corporate designee. On May 4, 2015, the trial court granted Meyer-
Chatfield’s motion to quash. On May 18, 2015, the BFS appellants filed a
notice of appeal to this Court at 1576 EDA 2015 from this order.
Second dispute. On January 6, 2015, Meyer-Chatfield served
interrogatories and document requests on the BFS appellants. Meyer-
Chatfield did not serve Byrd or Schwartz with any discovery requests. On
February 11, 2015, the BFS appellants produced a single one-page
document in response to Meyer-Chatfield's discovery requests. Otherwise,
the BFS appellants objected to the discovery requests as overbroad,
burdensome, costly, and protected under the attorney-client, work product
and joint defense privileges.
On February 17, 2015, Meyer-Chatfield filed a motion to compel the
BFS appellants, Byrd and Schwartz to provide full and complete responses to
its discovery requests. Meyer-Chatfield served the motion upon both
counsel for the BFS appellants and counsel for Byrd and Schwartz. The BFS
appellants filed a response claiming that Meyer-Chatfield’s requests were
burdensome and overbroad, and that certain materials were protected under
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J-S16013-16, J-S16014-16
the attorney-client, work product and joint defense privileges. Byrd and
Schwartz did not file any response to the motion.
On May 4, 2015, the trial court entered an order (“First Compel
Order”) granting the motion to compel and directed the BFS appellants to
provide full and complete answers, “without objection”, to Meyer-Chatfield’s
discovery requests. The order further directed the BFS appellants, Byrd and
Schwartz to (1) produce all business and personal computers and portable
electronic devices, business or personal, in use since January 1, 2012,
including all hard drives, servers, and email mailboxes for inspection by
Meyer-Chatfield's forensic computer analyst, and (2) turn over all passwords
to personal and business email accounts, computers, and portable devices
for inspection by the same analyst.
On May 18, 2015, the BFS appellants filed a notice of appeal at 1577
EDA 2015 from the First Compel Order. On May 21, 2015, the BFS
appellants filed a motion in the trial court seeking reconsideration of the First
Compel Order.
On May 20, 2015, Byrd and Schwartz filed a notice of appeal at 1578
EDA 2015 from the First Compel Order. On the same date, Byrd and
Schwartz filed a motion in the trial court seeking reconsideration of the First
Compel Order.
On June 11, 2015, more than thirty days after the First Compel Order,
the trial court entered an order amending the First Compel Order (“Second
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J-S16013-16, J-S16014-16
their termination or separation from the company or provide confidential
information about Meyer-Chatfield to any other individual or entity.
On October 2, 2013, Meyer-Chatfield filed a complaint in the trial court
at No. 2013-29858 naming Bank Financial Services Group, Goldberg and
Payne as defendants. The complaint alleged that Payne and Goldberg,
together with Bank Financial Services Group, formed and executed a plan to
take Meyer-Chatfield personnel, clients, and confidential and proprietary
information, in violation of the individual defendants' contractual and
fiduciary obligations to Meyer-Chatfield, and in an unfairly competitive
manner.
On October 7, 2013, Bank Financial Services Group, Goldberg, the
Steven Goldberg Sole Proprietorship, Winick, and Payne sued Meyer-
Chatfield seeking declaratory judgment and a special/preliminary injunction.
They sought a declaration that the restrictive covenants and covenants not
to compete contained in Goldberg’s contract were void and unenforceable,
alleged breach of contract by Meyer-Chatfield, asserted a breach of the duty
of good faith and fair dealing, and sought to enjoin Meyer-Chatfield’s alleged
tortious interference with existing and prospective business relationships in
addition to defamation and libel.
On October 18, 2013, the trial court consolidated these actions at No.
2013-30326.
-7-
J-S16013-16, J-S16014-16
Meyer-Chatfield subsequently filed two additional complaints at Nos.
2014-11331 and 2015-02972. The complaint at No. 2014-11331 named
Winick, Borchert, Barbaree, Savino, Savino Financial Group, Schwartz and
Byrd as defendants. The complaint at No. 2015-02972 named Goldberg,
Payne, Integrated Financial Services of PA, Inc. d/b/a BFS Group, IFS, Inc.
d/b/a Bank Financial Services Group, Winick, Byrd, Schwartz, Borchert,
Barbaree, Savino, and the Savino Financial Group as defendants. The trial
court consolidated these actions with the actions at No. 2013-30326.
The trial court held several days of hearings on the parties’ cross-
motions for preliminary injunctions. On March 13, 2014, prior to completion
of preliminary injunction hearings, the trial court granted Meyer-Chatfield’s
request for an “interim” injunction against BFS. BFS appealed the interim
injunction to the Superior Court. On October 7, 2014, the Superior Court
vacated the March 13, 2014 interim injunction at 1092 EDA 2014, holding
that it was premature for the trial court to enter an interim injunction before
the completion of hearings on the parties’ cross-motions for preliminary
injunctions.
Discovery disputes. Not only has there been extensive litigation
relating to the parties’ injunction motions, but there has also been
protracted litigation over discovery. In this appeal, we focus on two
discovery disputes that took place after the Superior Court vacated the
interim injunction.
-8-
J-S16013-16, J-S16014-16
Compel Order”). The Second Compel Order purported to provide a
procedure for preventing privileged materials from falling into Meyer-
Chatfield’s hands.2
On June 16, 2015, the BFS appellants filed a notice of appeal at 1896
EDA 2015 from the Second Compel Order. On July 9, 2015, Byrd and
Schwartz filed a notice of appeal from the Second Compel Order at 2330
EDA 2015.
DISCUSSION
We first address the BFS appellants’ appeals at 1576, 1577 and 1896
EDA 2015.
____________________________________________
2
The Second Compel Order provided: (1) Cornerstone Legal Consultants
(“Cornerstone”), the group to which Meyer-Chatfield's forensic computer
analyst belonged, would make “forensically sound bit-stream images of the
computers and portable electronic devices and external storage media (the
‘Computer Images’) and return such original media to … the BFS appellants
… after completion of the imaging”; (2) Cornerstone would retain the
Computer Images in a secure manner pending the resolution of the case; (3)
the BFS appellants would give Cornerstone a list of search terms for the
purposes of identifying and segregating all privileged documentation and
information (the “Privilege Keywords”); (4) Cornerstone would use the
Privilege Keywords to run searches on the Computer Images and produce all
documents containing Privilege Keywords (“Privilege Hits”) to the BFS
appellants; (5) the BFS appellants would review and redact the Privilege Hits
within thirty days or another appropriate timeframe ordered by the Court
and reasonably identify the Privilege Hits to determine whether they were
privileged in fact; (6) the BFS appellants would identify each withheld
document on a privilege log; (7) to the extent any privileged material was
observed by Cornerstone, such observation would not constitute a waiver of
any privilege; and (8) Cornerstone would inspect the Computer Images for
non-privileged materials only and maintain any privileged material in the
strictest confidence.
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1576 EDA 2015. As a threshold question, we must determine
whether this appeal is properly before us. Roman v. McGuire Memorial,
127 A.3d 26, 31 (Pa.Super.2015) (subject matter jurisdiction is non-
waivable and can be raised at any time by any party and by court sua
sponte).
The BFS appellants appeal from the May 4, 2015 order granting
Meyer-Chatfield’s motion to quash subpoenas on non-parties and a notice to
attend on Meyer-Chatfield’s corporate designee. The BFS appellants assert
that this order is appealable under the collateral order doctrine. We
disagree.
“A collateral order is an order 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). “[T]he collateral order doctrine is a specialized, practical application
of the general rule that only final orders are appealable as of right.” Melvin
v. Doe, 836 A.2d 42, 46–47 (Pa.2003). “Thus, Rule 313 must be interpreted
narrowly, and the requirements for an appealable collateral order remain
stringent in order to prevent undue corrosion of the final order rule.” Id. at
47. “To that end, each prong of the collateral order doctrine must be clearly
present before an order may be considered collateral.” Id.
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J-S16013-16, J-S16014-16
729 A.2d at 551-53. The issue of whether materials are privileged is a
question of law. Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1019
(Pa.Super.2015). Our standard of review is de novo, and our scope of
review is plenary. Id.
The BFS appellants claimed below, and claim again on appeal, that
certain materials are protected under the attorney-client, work product and
joint defense privileges. With regard to these materials, we reverse and
remand for further proceedings in accordance with T.M. v. Elwyn, Inc., 950
A.2d 1050 (Pa.Super.2008).
In T.M., Elwyn, the appellant, raised the attorney-client and work
product privileges in response to the plaintiff’s discovery requests. Notably,
Elwyn did not create a privilege log. Id. at 1063 (“we do not even have a
situation where there is a privilege log”). The trial court issued a broadly
worded discovery order which, Elwyn claimed, required it to produce
privileged documents. Elwyn appealed to this Court, and we held that we
had jurisdiction to review the order under Pa.R.A.P. 313. We observed that
we could not decide whether either privilege applied due to the absence of a
privilege log. But instead of finding that this omission resulted in waiver, we
remanded with instructions for Elwyn to create a privilege log and for the
trial court to rule on the discoverability of each document placed in the log
and sought by the plaintiff. We reminded Elwyn that, “as the party invoking
these privileges, it must initially set forth facts showing that the privilege
- 15 -
J-S16013-16, J-S16014-16
has been properly invoked” before the burden shifted to the party asking for
disclosure “to set forth facts showing that disclosure will not violate the
attorney-client privilege, e.g., because the privilege has been waived or
because some exception applies.” Id. at 1063. We continued that if, “upon
remand, Elwyn is able to identify certain materials encompassed in the
discovery request that are subject to the attorney-client privilege or work
product doctrine, then the trial court will be able to assess whether those
materials are discoverable.” Id. We directed that “the court may conduct in
camera review of documents identified by Elwyn to be subject to a privilege,
to better analyze the privilege issues, as needed.” Id.
In this case, the BFS appellants asserted the attorney-client, work
product and joint defense privileges in response to Meyer-Chatfield’s
discovery requests and motion to compel. Like the appellant in T.M., the
BFS appellants did not create a privilege log itemizing the privileged
materials. Because T.M. did not regard this omission as fatal, neither do
we. Instead, pursuant to T.M., we reverse and remand for the following
proceedings:
1. In accordance with a time schedule to be created by the trial court,
the BFS appellants shall create a privilege log identifying all materials that
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J-S16013-16, J-S16014-16
Generally, discovery orders are deemed interlocutory and not
immediately appealable, because they do not dispose of the litigation.
Branham v. Rohm and Haas Co., 19 A.3d 1094, 1101 (Pa.Super.2011).
On the other hand, discovery orders requiring disclosure of privileged
materials generally are appealable under Rule 313 where the issue of
privilege is separable from the underlying issue. Ben v. Schwartz, 729
A.2d 547, 551–53 (Pa.1999). For example, an order denying a motion to
quash a subpoena for a deposition is appealable under Rule 313 when the
information sought is privileged under federal health and safety regulations.
Price v. Simakas Co., Inc., 133 A.3d 751, 755 (Pa.Super.2016).
The order at issue does not require disclosure of allegedly privileged
information. Instead, it prevents disclosure of sought-after information,
privileged or otherwise, by quashing subpoenas issued to non-parties and
the notice to attend issued to Meyer-Chatfield’s corporate designee. Thus,
this order is not appealable under Rule 313.
Branham, a decision relied upon by the BFS appellants, is not on
point. Branham held that an order denying a non-resident, non-party
corporation’s motion to quash a discovery subpoena was appealable under
Rule 313, because it involved an important question concerning the extent of
the trial court’s subpoena power over a foreign corporation which was
qualified to do business in Pennsylvania. The order in Branham required
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the disclosure of information; the order in question here granted the motion
to quash and therefore precludes disclosure of information.
Thus, we quash the appeal at 1576 EDA 2105.
1577 EDA 2015. This is the BFS appellants’ appeal from the First
Compel Order on May 4, 2015. As stated above, Meyer-Chatfield moved to
compel the BFS appellants to answer its interrogatories and document
requests. The BFS appellants objected on the grounds that the discovery
requests were overbroad, burdensome, costly and called for privileged
materials. The First Compel Order directed the BFS appellants to provide full
and complete responses, “without objection”,3 to Meyer-Chatfield’s requests,
and it further instructed the BFS appellants to turn over its computers,
electronic devices and passwords to Meyer-Chatfield’s forensic computer
analyst.
We know of no decision, nor do the BFS appellants point us to any, in
which an order directing disclosure of non-privileged materials is appealable
under the collateral order doctrine. Thus, to the extent that the First Compel
Order requires production of non-privileged materials, we hold that Rule 313
is inapplicable and quash the BFS appellants’ appeal.
We do, however, have jurisdiction over this appeal to the extent that
the First Compel Order requires production of privileged materials. Ben,
____________________________________________
3
Viewed in context, “without objection” signifies the trial court’s intent to
compel production of materials despite any assertion of privilege.
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729 A.2d at 551-53. The issue of whether materials are privileged is a
question of law. Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1019
(Pa.Super.2015). Our standard of review is de novo, and our scope of
review is plenary. Id.
The BFS appellants claimed below, and claim again on appeal, that
certain materials are protected under the attorney-client, work product and
joint defense privileges. With regard to these materials, we reverse and
remand for further proceedings in accordance with T.M. v. Elwyn, Inc., 950
A.2d 1050 (Pa.Super.2008).
In T.M., Elwyn, the appellant, raised the attorney-client and work
product privileges in response to the plaintiff’s discovery requests. Notably,
Elwyn did not create a privilege log. Id. at 1063 (“we do not even have a
situation where there is a privilege log”). The trial court issued a broadly
worded discovery order which, Elwyn claimed, required it to produce
privileged documents. Elwyn appealed to this Court, and we held that we
had jurisdiction to review the order under Pa.R.A.P. 313. We observed that
we could not decide whether either privilege applied due to the absence of a
privilege log. But instead of finding that this omission resulted in waiver, we
remanded with instructions for Elwyn to create a privilege log and for the
trial court to rule on the discoverability of each document placed in the log
and sought by the plaintiff. We reminded Elwyn that, “as the party invoking
these privileges, it must initially set forth facts showing that the privilege
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has been properly invoked” before the burden shifted to the party asking for
disclosure “to set forth facts showing that disclosure will not violate the
attorney-client privilege, e.g., because the privilege has been waived or
because some exception applies.” Id. at 1063. We continued that if, “upon
remand, Elwyn is able to identify certain materials encompassed in the
discovery request that are subject to the attorney-client privilege or work
product doctrine, then the trial court will be able to assess whether those
materials are discoverable.” Id. We directed that “the court may conduct in
camera review of documents identified by Elwyn to be subject to a privilege,
to better analyze the privilege issues, as needed.” Id.
In this case, the BFS appellants asserted the attorney-client, work
product and joint defense privileges in response to Meyer-Chatfield’s
discovery requests and motion to compel. Like the appellant in T.M., the
BFS appellants did not create a privilege log itemizing the privileged
materials. Because T.M. did not regard this omission as fatal, neither do
we. Instead, pursuant to T.M., we reverse and remand for the following
proceedings:
1. In accordance with a time schedule to be created by the trial court,
the BFS appellants shall create a privilege log identifying all materials that
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J-S16013-16, J-S16014-16
are protected by the (1) attorney-client privilege, (2) work product privilege
and (3) joint defense privilege.4
____________________________________________
4
We note that the BFS appellants waived all other privileges by failing to
raise them in response to Meyer-Chatfield’s discovery requests or motion to
compel.
The BFS appellants purported to raise additional privileges (the accountant-
client, psychologist-patient and marital privileges) in a motion for
reconsideration filed after the First Compel Order. Raising an issue for the
first time in a motion for reconsideration, however, does not rescue that
issue from waiver. See Prince George Center, Inc. v. U.S. Gypsum Co.,
704 A.2d 141, 145 (Pa.Super.1997) (citing Pa.R.A.P. 302(a)) (declining to
consider issues raised initially in motion for reconsideration).
In the same motion for reconsideration, the BFS appellants purported to
assert a right of “privacy” in a multitude of materials. Our Supreme Court
recently indicated in Dougherty v. Heller, -- A.3d --, 2016 WL 3261814
(Pa., 6/14/16), that a party’s privacy objection could be significant enough
to make a discovery order subject to collateral order review. Id., 2016 WL
3261814, at *17. The Court cautioned, however:
[W]e cannot accept that any assertion of an attendant privacy
concern should transform a discovery order that otherwise is not
appealable by right into a collateral order subject to as-of-right
interlocutory appellate review. Instead, we find that the specific
privacy concern in issue must be evaluated and adjudged to
satisfy the importance requirement. In this regard, we make the
distinction among different orders of privacy interests, such as
those of a constitutional magnitude or recognized as such by
statute, as compared with lesser interests.
Id. (emphasis in original).
Had the BFS appellants timely raised privacy objections in response to
Meyer-Chatfield’s discovery requests or motion to compel, we would have
examined whether they were of such broad public importance as to justify
collateral order review. But because the BFS appellants did not raise privacy
objections until their motion for reconsideration, we find these objections
waived. Prince George Center, Inc., 704 A.2d at 145.
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2. In accordance with the trial court’s time schedule, Meyer-Chatfield
shall identify all materials in the privilege log that it desires to obtain.
3. As needed, the trial court may conduct in camera review of
materials that the BFS appellants claim are subject to one or more of the
foregoing privileges.
4. The trial court shall enter an order specifying the materials in the
BFS appellants’ privilege log which are protected from disclosure.
5. Except for the materials that the trial court’s order protects from
disclosure, and except for any time scheduling modifications made by the
trial court on remand, the provisions of the First Compel Order shall remain
in full force and effect.
1896 EDA 2015. On May 21, 2015, the BFS appellants filed a motion
in the trial court seeking reconsideration of the First Compel Order. On June
11, 2015, more than thirty days after the First Compel Order, the trial court
entered the Second Compel Order which modified the terms of the First
Compel Order. On June 16, 2015, the BFS appellants appealed the Second
Compel Order at 1896 EDA 2015.
Under Pa.R.A.P. 1701, the trial court lacked jurisdiction to enter the
Second Compel Order. Rule 1701 prescribes in relevant part:
(b) After an appeal is taken … the trial court … may: …
(3) Grant reconsideration of the order which is the subject of the
appeal or petition, if:
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