Fisher, H. v. Erie Insurance Exchange ( 2021 )

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2021 PA Super 130HELEN FISHER AND WILLIAM FISHER, IN THE SUPERIOR COURT
HER HUSBAND OF PENNSYLVANIA
Appellees
v.
ERIE INSURANCE EXCHANGE A/K/A
ERIE
Appellant No. 1597 WDA 2018
Appeal from the Order Entered October 19, 2018
In the Court of Common Pleas of Blair County
Civil Division at No: 2016 GN 298
BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
OPINION BY STABILE, J.: FILED: JUNE 25, 2021
Appellant, Erie Insurance Exchange (“Erie”), appeals from the October
19, 2018 order entered in the Court of Common Pleas of Blair County directing,
inter alia, that Erie submit claims file materials to the trial court for an in
camera review. Erie contends the trial court erred in ordering production of
materials protected by the attorney-client privilege and the work product
doctrine and asserts this Court has jurisdiction to hear this appeal from a
collateral order under Pa.R.A.P. 313. Following review, we quash the appeal.
A review of the record reveals that Appellee, Helen Fisher (“Helen”),
allegedly sustained injuries on July 19, 2013, due to the negligence of Bobbie
Jo Green (“Green”). Helen and her husband, William (collectively “the
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Fishers”), filed suit against Green, alleging Green parked her truck in a bowling
alley parking lot, leaving her child unattended in the vehicle. After a period
of time, the truck began drifting downhill in the parking lot. Helen sustained
injuries when she fell while trying to move out the path of the truck. See
Complaint, 1/29/16, ¶¶ 6-13. Both the Fishers and Green were insured by
Erie.1
The Fishers also asserted an underinsured motorists (“UIM”) claim
against Erie. By letter dated August 24, 2015, Erie advised the Fishers’
counsel that the UIM file had been forwarded “to assist Erie in the liability
investigation and damage evaluation. . . . Specifically Arthur J. Leonard of
Robb, Leonard & Mulvihill has been assigned.” See Appellees’ Response to
Rule to Show Cause, 12/19/18, at Exhibit A. The Fishers’ counsel received a
letter dated September 3, 2015 from Arthur J. Leonard, Esquire (“Leonard”),
of Robb Leonard Mulvihill, LLP, indicating in part, “I have been requested by
[Erie] to assist in the investigation and evaluation of the [UIM] claim that you
have presented on behalf of your clients, Helen and William Fisher.” Id. at
Exhibit B. In his letter, Leonard advised the Fishers’ counsel that he was
seeking additional documentation relating to Helen’s injuries and was
interested in obtaining the documentation in advance of taking the Fishers’
depositions. Leonard explained:
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1 According to the briefs filed by amici curiae (see n.4), the suit against Green
remained unresolved at least as late as December 10, 2019.
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The purpose of this examination and securement of these records
is to assist in aiding Erie in the evaluation of your client’s claim for
both liability and damage. The purpose of the examination under
oath is to investigate the happening of the incident as well as to
evaluate your client’s condition and the affect this incident may
have had on her and her husband.
Id.Counsel for the Fishers did not respond to Leonard’s letter. Nearly five
months later, on January 29, 2016, the Fishers filed suit against Erie,
contending Green was underinsured, and alleging breach of contract and bad
faith with respect to the Fishers’ UIM claim. Leonard filed pleadings on behalf
of Erie as well as objections to discovery served by the Fishers.
At issue in this appeal is the trial court’s October 19, 2018 directive with
respect to discovery, specifically with respect to the Fishers’ Request for
Production #16 and Erie’s response thereto. The Fishers requested:
16. A complete copy of all documentation reflecting any
investigation, evaluation and/or valuation of [the Fishers’] claims
for [UIM] coverage authored, prepared by or obtained by Arthur
J. Leonard, Esquire and/or the law firm of Robb Leonard
Mulvihill.[2]
Erie responded:
ANSWER: Request No. 16 is overly broad, unduly burdensome,
seeks information which is irrelevant, protected by the attorney-
client privilege, work-product doctrine, Pennsylvania Rule of Civil
Procedure 4003.3-4003.5 and/or will not lead to the discovery of
admissible evidence.
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2 We may refer to the documents encompassed within this request as the
“claims materials.”
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Request for Production #16 and Response.3
On July 13, 2018, the trial court heard argument on Erie’s objections to
Request for Production #16 as well as other objections lodged by Erie. By
order entered October 19, 2018, the trial court directed, “With regard to
Request for Production of Documents 16, [Erie] shall submit to his court for in
camera review the responsive information [] within twenty (20) days from
receipt of the Opinion and Order.” Order, 10/19/18, at 2 (some capitalization
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3 The attorney-client privilege is codified at 42 Pa.C.S.A. § 5928 and provides
that “[i]n a civil matter counsel shall not be competent or permitted to testify
to confidential communications made to him by his client, nor shall the client
be compelled to disclose the same, unless in either case this privilege is waived
upon the trial by the client.” “It is well-settled that the attorney-client
privilege is one of the most sacrosanct privileges that exists.”
Commonwealth v. Schultz, 133 A.3d 294, 308 (Pa. Super. 2016).
With respect to the work product doctrine,
[s]ubject 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 or her attorney, consultant, surety,
indemnitor, insurer or agent. The discovery shall not include
disclosure of the mental impressions of a party’s attorney or his
or her 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 or her 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 work product doctrine is one of the most fundamental
tenets of our system of jurisprudence.” Commonwealth v. Williams, 86
A.3d 771, 782 (Pa. 2014) (citation omitted).
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omitted). Addressing Request for Production #16 in its accompanying
opinion, the court explained:
[Erie] objects with identical boilerplate language that it uses in a
number of other responses to the Request for Production of
Documents. We find that the information requested is relevant
and material to [the Fishers’] cause of actions or possibly [Erie’s]
affirmative defenses and do not find the term[s] used by [the
Fishers] in the request to be vague or overly broad, or unduly
burdensome. However, on its face, the request may seek
some, if not all, documentation/information that is
protected. [The Fishers rely] on the letter from defense counsel
dated September 3, 2015 for [their] argument that Erie waived its
attorney-client privilege as to Attorney Leonard and his firm’s role
in the investigation, valuation, and evaluation of [the Fishers’
UIM] claim. While this court understands [the Fishers’] position,
we decline to find that the September 3, 2015 letter automatically
renders any and all documentation between [Erie] and its counsel
unprivileged. [Erie] shall submit the requested information
to this court for an in camera review in order for this court
to determine the extent that the information contained
therein is privileged. Accordingly, [Erie’s] general objection is
overruled and [the Fishers’] consolidated motion to dismiss
as to this request is deferred until this court conducts an in
camera review of the information as it pertains to this
request.
Opinion, 10/19/18, at 21-22 (emphasis added) (some capitalization omitted).
This timely appeal followed. In its docketing statement filed with this
Court, Erie averred the trial court’s October 19, 2018 order was appealable
under Pa.R.A.P. 313 as a collateral order.4 On November 30, 2018, we issued
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4 Pa.R.A.P. 313 (Collateral Orders) provides:
(a) General rule.--An appeal may be taken as of right from a
collateral order of a trial court or other government unit.
(Footnote Continued Next Page)
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a rule to show cause why the appeal should not be quashed. Erie responded,
asserting:
The Order meets the requirements of Rule 313 and, therefore, is
immediately appealable because: (1) it is collateral to the main
cause of action since it may be analyzed without analyzing the
central issues of the case; (2) it implicates rights too important to
be denied review, i.e., the public’s interest in protecting the
attorney-client privilege; and (3) such important rights will be lost
if review is postponed until final judgment.
Erie’s Response to Rule to Show Cause, 12/13/18, at 3. With respect to the
third prong of Rule 313, Erie contends that once the information is disclosed,
confidentiality would be lost. Id. at 4 (citation omitted).
The Fishers counter:
Other than arguing the same boilerplate objections, Erie was
either unable or unwilling to offer one iota of evidence or factual
support for the boilerplate objections at the oral argument on July
13, 2018. The objecting party bears the burden of establishing
the requested information is not relevant or discoverable. . . .
....
Erie is unable to satisfy the third prong establishing this
interlocutory order as being a collateral order. No rights or
interests will be “lost” through an in camera review of the
documents sought by the trial court. In fact, the exact opposite
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(b) Definition.--A collateral order is an order [1] separable from
and collateral to the main cause of action [2] where the right
involved is too important to be denied review and [3] the question
presented is such that if review is postponed until final judgment
in the case, the claim will be irreparably lost.
“[W]here an order satisfies Rule 313’s three-pronged test, we may exercise
appellate jurisdiction where the order is not final. If the test is not met,
however, and in the absence of another exception to the final order rule, we
have no jurisdiction to consider an appeal of such an order.” Rae v.
Pennsylvania Funeral Directors Ass’n, 977 A.2d 1121, 1125 (Pa. 2009).
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is true. [The trial judge’s] cautious approach actually preserves
privilege or work product to the extent such rights are established
where an insurer has delegated the duties of investigation and
evaluation to an attorney.
There is no other method to determine whether the investigation
and evaluation documents are subject to privilege or work
product. If the trial court does not review the investigation and
evaluation documents sought then who is going to complete this
duty?
Fishers’ Response to Rule to Show Cause, 12/19/18, at 2-3 (unnumbered)
(citation omitted).
By order of December 20, 2018, we discharged the rule and permitted
the appeal to proceed, subject to the assigned panel revisiting the
appealability issue. A briefing schedule was established and the parties filed
their briefs accordingly.
In the interim, the trial court issued a Rule 1925(a) opinion. Although
the October 19, 2018 Opinion and Order addressed numerous objections to
the Fishers’ discovery requests, Erie’s Rule 1925(b) statement was limited to
the court’s ruling with respect to Request for Production #16. Addressing this
error asserted in the Rule 1925(b) statement, the trial court stated:
With regard to Request Number 16, [the Fishers] argued that it
did not seek mental impressions or trial strategy of attorney-client
privileged or work product materials, but rather was based upon
the pre-complaint letters from Erie and Attorney Leonard, which
state that Attorney Leonard had been assigned by Erie to assist
with the liability investigation and damage evaluation. At the July
13, 2018 hearing, Attorney Leonard argued the general objections
and that the letter, as clearly authored by him, protected
disclosure.
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On October 19, 2018, we entered an Opinion and Order
determining, among other matters, that the court would conduct
an in-camera review of those items requested pursuant to
[Request for Production #16]. [Erie] filed a timely appeal on
November 8, 2018. We entered an Order on November 9, 2018,
[directing Erie to file a Rule 1925(b) statement. Erie timely
complied, listing six alleged errors.]
We have reviewed [Erie’s Rule 1925(b) statement] and note that
all claims of alleged error involved the court’s ruling relative to
[Request for Production #16]. Further, we note that [Erie]
incorrectly asserts that we granted [the Fishers’] Consolidated
Motion and that said granting required production to [the Fishers].
In fact, not only did we not order disclosure to [the Fishers], this
court exercised its discretion to defer ruling pending an in-camera
review by the court. Pennsylvania courts conduct an in-camera
review, among other possible methods, in order to preserve
attorney privileged material. The purpose of in camera review is
to determine whether such documents are what the objecting
party claims and that the claimed privilege exists.
Rule 1925 Opinion, 1/3/19, at 2-3 (unnumbered) (emphasis in original)
(citations and some capitalization omitted).
In its brief, Erie asks us to consider the following:
I. These errors are immediately appealable under
Pennsylvania Rule of Appellate Procedure 313.
II. Whether the trial court erred in ordering the production of
privileged materials protected by the attorney-client
privilege for an in camera review.
III. Whether the trial court erred in ordering the production of
privileged materials protected by the work product doctrine
for an in camera review.
IV. Whether the trial court erred in finding that [Erie’s]
objections were general objections.
Appellant’s Brief at 4.
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A panel of this Court heard argument on June 18, 2019. Following
argument, the panel requested certification for en banc review to consider
whether decisions from this Court cited by the parties in their briefs were in
conflict as to whether an order directing in camera review is appealable as a
collateral order under Rule 313 or whether such an order is interlocutory and
not yet ripe for appeal.
By order entered September 16, 2019, the Court announced the case
would be considered by the Court sitting en banc, and ordered the parties to
file either a supplemental or a substituted brief addressing the following issue:
Whether: (1) a conflict exists between this Court’s line of cases,
cited by the parties in their original briefs, regarding in camera
review of the documents Appellant claims are protected by
attorney-client privilege; and (2) if a conflict exists, which line of
cases should the en banc Panel adopt?
Order, 9/16/19, at 2 (unnumbered). Both parties filed supplemental briefs, 5
and the case was argued before an en banc panel of this Court.
Erie’s first issue asserts that the trial court’s October 19, 2018 order is
immediately appealable. “Whether an order is appealable under the collateral
order doctrine under Pa.R.A.P. 313 is a question of law, subject to a de novo
standard of review, and the scope of review is plenary.” Shearer v. Hafer,
177 A.3d 850, 855 (Pa. 2018). Further:
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5 In addition to the parties’ supplemental briefs, amicus curiae briefs were filed
by The Pennsylvania Defense Institute in support of Erie and The Pennsylvania
Association of Justice in support of the Fishers.
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“[We] construe the collateral order doctrine narrowly, and insist
that each one of its three prongs be “clearly present” before
collateral appellate review is allowed. Indeed, “[w]e construe the
collateral order doctrine narrowly so as to avoid ‘undue corrosion
of the final order rule,’ . . . and to prevent delay resulting from
‘piecemeal review of trial court decisions.’” K.C. v. L.A., 633 Pa.
722, 128 A.3d 774, 778 (2015) (quoting Pridgen v. Parker
Hannifin Corp., 588 Pa. 405, 905 A.2d 422, 427 (2006)). As
colorfully explained by then-Justice, later Chief Justice, Henry X.
O'Brien, “[i]t is more important to prevent the chaos inherent in
bifurcated, trifurcated, and multifurcated appeals than it is to
correct each mistake of a trial court the moment it occurs.”
Calabrese v. Collier Township Municipal Authority, 432 Pa.
360, 248 A.2d 236, 238 (1968) (O'Brien, J., dissenting).
Moreover, as parties may seek allowance of appeal from an
interlocutory order by permission, we have concluded that that
discretionary process would be undermined by an overly
permissive interpretation of Rule 313. Geneviva [v. Frisk, 725
A.2d 1209, 1214 n.5 (Pa. 1999)].
Id. at 858 (some citations omitted).
As this Court observed in McIlmail v. Archdiocese of Pittsburgh, 189
A.3d 1100 (Pa. Super. 2018):
Generally, discovery orders are deemed interlocutory and not
immediately appealable, because they do not dispose of the
litigation. 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. This is because if immediate appellate review is
not granted, the disclosure of documents cannot be undone and
subsequent appellate review would be rendered moot. See
Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253, 1258 (Pa. Super.
2011); Dibble v. Penn State Geisinger Clinic, Inc., 806 A.2d
866, 870 (Pa. Super. 2002) (“[T]here is no question that if the
documents which have been disclosed are in turn disseminated
. . . appellate review of the issue will be moot because such
dissemination cannot be undone.”)
Id. at 1104-05.
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In this appeal, we accept that the first two prongs of the collateral order
doctrine are satisfied and, therefore, focus on the third prong of the collateral
order rule, i.e., whether Erie’s claims of attorney-client privilege and work
doctrine protections (the “protected claims”) will be irreparably lost if review
is postponed until final judgment. Examining this third prong not only will
decide Erie’s first issue whether the order for in camera review is appealable,
but also Erie’s second and third issues as to whether the trial court erred in
ordering in camera review to determine if any of the requested documents are
protected from disclosure under any applicable privilege.6 This is so because
we first must determine if an in camera review is permissible before we can
decide whether the appealed order is subject to collateral review.
On its face, Request for Production #16 certainly suggests the Fishers
seek the production of attorney-client privilege and attorney work product
documents (the “privileged materials”). Erie objected to production of these
materials as expected. Fishers filed a motion to compel discovery that was
argued before the trial court. Erie produced a privilege log, discussed in more
detail, infra, for the trial court’s review. The Fishers argue that the September
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6 The work product doctrine is not a privilege, but rather a rule embodied in
Pa.R.Civ.P. 4003.3. It is not uncommon however, to see the doctrine also
referred to as a privilege. See Gillard v. AIG Insurance Company, 15 A.3d
44, 55 n.16 (Pa. 2011); Gocial v. Independence Blue Shield, 827 A.2d
1216, 1222 (Pa. Super. 2003) (referring both to the work-product doctrine
and work-product privilege). For convenience, we shall refer to both the
attorney-client privilege and the work product doctrine as “privileges” in the
context of this Opinion when we intend to refer to both at the same time.
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3, 2015 letter confirms Erie did not retain Mr. Leonard as counsel for legal
advice or counseling, or in anticipation of litigation. Appellees Supplemental
Brief at 2. Instead, the Fishers contend, citing 31 Pa. Code § 146.6,7 the letter
proves that Erie delegated its evaluation and investigative duties to Mr.
Leonard, thus rendering the claimed materials discoverable. Finding itself
unable to resolve the protected claims, the trial court entered its order
directing counsel to produce the objected-to materials for an in camera
inspection.
The party asserting privilege against discovery of requested materials
bears the burden of proof of demonstrating that the materials are protected
from disclosure. As this Court explained in Yocabet v. Presbyterian, 119
A.3d 1012 (Pa. Super. 2015):
The “party invoking a privilege must initially set forth facts
showing that the privilege has been properly invoked[.]” Red
Vision Systems, Inc. v. National Real Estate Information
Services, L.P., 108 A.3d 54, 62 (Pa. Super. 2015) (attorney-
client privilege); accord In re T.B., 75 A.3d 485 (Pa. Super.
2013) (statutory privilege applicable to communications to
psychiatrist and psychologists). Once the invoking party has
made the appropriate proffer, then the burden shifts to the party
seeking disclosure to set forth facts showing that disclosure should
be compelled either because the privilege has been waived or
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7 31 Pa. Code § 146.6 provides: "Every insurer shall complete investigation of
a claim within 30 days after notification of claim, unless the investigation
cannot reasonably be completed with the time. If the investigation cannot be
completed within 30 days, and every 45 days thereafter, the insurer shall
provide the claimant with a reasonable written explanation for the delay and
state when a decision on the claim may be expected."
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because an exception to the privilege applies. Red Vision
Systems, Inc., supra; In re T.B., supra.Id., 119 A.3d at 1019. “[I]f the party asserting the privilege does not produce
sufficient facts to show that the privilege was properly invoked, then the
burden never shifts to the other party, and the communication is not protected
under attorney-client privilege.” Ignelzi v. Ogg, Cordes, Murphy and
Ignelzi, LLP, 160 A.3d 805, 813 (Pa. Super. 2017) (quoting T.M. v. Elwyn,
950 A.2d 1050, 1063 (Pa. Super. 2008) (internal quotations, alterations, and
citations omitted)).
In support of Erie’s assertion of attorney-client and work product
doctrine privileges, Erie submitted a privilege log8 to the trial court. However,
the log simply lists numbers of documents, the subject of the document, and
the privilege basis, all in cursory fashion. For instance, subjects of documents
include “Strategy/tactics,” “Attorney client privilege,” or “Value/merit” and the
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8 When responding to written interrogatories or document production
requests, our rules do not per se require the production of a privilege log when
a responding party asserts privilege as a basis to object to production. See
Pa.R.Civ.P. 4006 and 4009.12, respectively. Nonetheless, as stated, when
privilege is asserted, the responding party bears the burden of proving the
materials are protected from disclosure. The preparation of a privilege log
provides an acceptable format in which to identify documents, the applicable
privilege, and the reason for the privilege claimed. In fact, it now is customary
for a requesting party to provide written instructions in a discovery request
for the production of a privilege log when claims of privilege are asserted as a
basis for objection. See Meyer-Chatfield Corp. v. Bank Financial Services
Group et al., 143 A.3d 930, 937-38 (Pa. Super. 2016) (failure to produce
privilege log prevented review of privilege; failure was not fatal to the appeal;
remand ordered for log production to permit in camera court review).
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privilege basis is simply “MI” (“mental impressions, conclusion or opinions
respecting the value or merit of a claim or defense or respecting strategy or
tactics”) or “AC” (attorney client privilege). See Privilege Log, R. 75a-77a.
As the Fishers contend:
This privilege log offered no value to help determine the veracity
of Erie’s claims of privilege or work-product.
Erie’s log does not identify which of the seventeen requests the
arbitrarily withheld documents would apply [sic]. Erie’s log does
not identify any author of the documentation. The log does not
identify the recipient of the documentation being withheld. This
log does not even identify the dates of any of the documents
withheld.
Appellees’ Supplemental Brief at 3-4. Erie had the burden of setting forth
facts to demonstrate its claims materials were not subject to disclosure. We
agree that the trial court acted appropriately and conclude that under these
circumstances the ordering of an in camera review is well supported by our
case law. While Erie produced a privilege log, Erie did not provide enough
useful information in the log to enable the trial court to rule on the relevance
of the items listed or explain why privileges raised were applicable. Therefore,
Erie failed to meet its burden to assert facts establishing either an attorney-
client or a work product privilege with respect to any of the documents at
issue. In other words, as the party claiming privilege, Erie did not produce
sufficient facts to demonstrate that the privilege was properly invoked.
Ignelzi, 160 A.3d at 813. Therefore, the burden of proof never shifted to the
Fishers. Id. Nonetheless, Erie did make some showing, albeit incomplete,
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that the requested materials may be protected. The trial court recognized
that some of the documents at issue “may” be privileged. However, because
the court could not ascertain whether they were protected by the attorney-
client privilege or the work product doctrine, it did not order production of any
of the documents responsive to Request for Production #16. Instead, the
court ordered an in camera review to consider whether the documents were
privileged, while appropriately reserving ruling on the Fishers’ motion to
compel. We agree the trial court acted appropriately and well within its
discretion to order an in camera review. Our case law supports this
conclusion.
As this Court recently observed:
The privilege log is the primary source for determining whether
attorney-client privilege or work-product privileges apply. Where
the log alone does not permit meaningful analysis of the
underlying claim or the scope of the asserted privilege, in camera
review is available. See Pa.R.C.P. 4003.3. As we acknowledged
in Berg v. Nationwide Mutual Ins. Co., 44 A.3d 1164, 1179
(Pa. Super. 2012), “[i]n camera review is a valuable tool for
determining the validity of privilege claims, and in many
instances, it is difficult to make an informed decision regarding
privilege without such an inspection.”
CCL Academy Inc. v. Academy House Council, 231 A.3d 884, 889 (Pa.
Super. 2020) (footnote omitted).
In Ignelzi, the trial court ordered an in camera review to determine
whether the requested documents were, in fact, privileged. In that case,
Ignelzi was elected to the common pleas bench. Ignelzi filed suit after he and
his former law partners were unable to negotiate a settlement determining
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the amount the former partners would pay him for his partnership share of
contingent fee cases that concluded after dissolution of the partnership.
Ignelzi served discovery requests seeking, inter alia, client lists for all claims
or cases the partnership accepted, or began to review for acceptance, as of
the date the partnership was dissolved, along with bookkeepers’ summaries
for the four years leading up to that date. The trial court ordered that the
documents be produced. The Court in Ignelzi looked to T.M. in considering
whether there was a potential attorney-client privilege violation if the
requested records were produced. We recognized that in T.M., we held that
“it is impossible for this Court to determine whether any privilege applies when
the [school] has failed to identify or describe any such documents that may
be protected.” Id., 160 A.3d at 813 (quoting T.M., 950 A.2d at 1062). As
explained in T.M.:
In the instant case, we do not . . . have a situation where there is
a privilege log, let alone any indication or analysis on the part of
the trial court with regard to documents that [the school] deemed
protected by the attorney-client privilege and work product
doctrine. We remind [the school] that, as the party invoking these
privileges, it 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 attorney-client privilege, e.g., because the
privilege has been waived or because some exception applies.”
Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1266 (Pa.
Super. 2007) (citations omitted). Accordingly, “[i]f the party
asserting the privilege does not produce sufficient facts to show
that the privilege was properly invoked, then the burden never
shifts to the other party, and the communication is not protected
under attorney-client privilege.” Id. at 1267. If, upon remand,
[the school] is able to identify certain materials encompassed in
the discovery request that are subject to the attorney-client
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privilege or work product doctrine, then the trial court will be able
to assess whether those materials are discoverable. We therefore
remand, noting that the court may conduct in camera review of
documents identified by [the school] to be subject to a privilege,
to better analyze the privilege issues, as needed.
Id. 950 A.2d at 1063.
Mindful of our analysis in T.M., in Ignelzi we explained:
Applying this law to the instant case, it was Appellants' burden to
assert facts establishing the applicability of attorney-client
privilege. In addition, where the requests encompass more than
one document, it was up to Appellants to create a privilege log to
permit the trial court to rule on discoverability in the first instance.
Appellants have not asserted any such facts in meeting their
burden, nor have they produced a privilege log.
Ignelzi, 160 A.3d at 813-14.
Also instructive in this regard is Gocial, supra. In Gocial, we held that
if there is a privilege log, it is the trial court’s responsibility to “rule on the
relevance of each item . . . or explain why the privileges raised were
inapplicable.” Id., 827 A.2d at 1223. While we agreed the defendants were
entitled to discovery to establish a conflict under Pa.R.C.P. 1709 (relating to
class actions), we were unable to determine whether and to what extent
claimed privileges might apply based on the record before the Court. We
concluded a remand was necessary “so that the trial court may issue a ruling
with respect to each document actually sought by the defendants. In some
instances, in camera review may be required.” Id. at 1223 (emphasis
added).
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In arguing that the requested documents are not subject to in camera
review, Erie principally relies upon this Court’s decision in Farrell v. Regola,
150 A.3d 87 (Pa. Super. 1995), wherein we stated, “If materials are
privileged, no one, not even a trial judge, may have access to them.” Id. at
95. In Farrell, we were tasked with reviewing whether the
psychiatrist/psychologist-patient privilege applied to mental health counseling
sessions, including sessions with a psychologist and clinical social worker, and
whether the attorney-client privilege covered notes taken by a client during
criminal and civil proceedings.
In Farrell, Appellee J. Douglas Farrell, as administrator of the Estate of
Louis J. Farrell, deceased, instituted a wrongful death and survival action on
behalf of himself and other unnamed heirs, including his wife, arising out of
the suicide of his son, Louis, committed with gun taken from the Regolas’
home. He averred that the negligence of Mr. and Mrs. Regola was the
proximate cause of the death of Louis, age fourteen. In connection with the
suicide, Mr. Regola was charged, inter alia, with permitting a minor to possess
the gun. In discovery, the Regolas were asked if they sought any medical
care, including any mental health care, relating to the subject of the suit. The
request also asked for copies of all records relating to the response. In
addition, Mr. Farrell sought handwritten notes taken by Mr. Regola during his
criminal trial and during depositions in the civil law suit. The Regolas objected
to these requests based upon privilege. In response to a court order entered
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after hearing on a motion to compel, Mrs. Regola filed two detailed privilege
logs setting forth the dates and nature of the documents she received. The
first privilege log pertained to materials authored by a psychological services
provider and included notes from a May 19, 2007 clinical interview and June
1, 2007 progress notes. Mrs. Regola asserted that the materials were
privileged under the psychiatrist/psychologist-patient privilege. The second
privilege log contained documents authored by a licensed clinical social
worker. The documents included notes from a treatment session, a letter to
Mrs. Regola’s primary care physician discussing information that she gave
during a treatment session, an evaluation containing information provided by
her during the session, and a letter transmitting her records to her. Mr. Regola
complied with the order by filing a supplemental privilege log. In the log, he
asserted that the attorney-client privilege had not been waived, explaining
that he was a client of Attorney Arthur J. Leonard, who represented the
Regolas in Mr. Farrell’s lawsuit. The log continued that the notes were
communicated only to Attorney Leonard, that they related to the deposition
in question, and that the notes were communicated to Attorney Leonard to
secure assistance in the ongoing legal matter. After review, the trial court
indicated that it intended to disseminate to Mr. Farrell anything said by the
Regolas if the communications related to the events surrounding Louis' death.
This Court accepted the matter as a collateral appeal and reversed the
trial court. We concluded the record established that the mental health
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counseling provided Mrs. Regola was performed by a member of a team that
included a licensed psychologist and that she had every right to believe that
her communications, obtained for purposes of seeking mental health
treatment, would be confidential. With respect to Mr. Regola, different counsel
represented him in his criminal and civil proceedings. We held he was the
client when he made the notes at his criminal trial and when he took notes
during the civil depositions.9 Both counsel were licensed members of the bar.
The notes taken at the direction of the attorneys were for purposes of securing
Mr. Regola's assistance in defending him in the lawsuits in question and were
given only to those lawyers. The privilege was never waived and, instead, had
been continually asserted therein. We were able to make these
determinations, since the privilege logs were clear and unequivocal. We
reaffirmed that notes taken by a client in a lawsuit at the lawyer’s behest and
given to the attorney so that the attorney can help defend the client in the
suit are absolutely privileged. Farrell, 150 A.3d at 102.
The fact that the requests made and the privilege logs produced in
Farrell so clearly invoked privilege, places in context this Court’s statement
that if materials are privileged, no one, not even a judge, may have access to
them. The requests on their face clearly asked for privileged documents.
____________________________________________
9 Even though the request for production of documents was limited to matters
pertaining to Mr. Regola's criminal trial, the trial court’s order also discussed
whether Mr. Regola had to produce notes that he took during civil depositions
conducted in the lawsuit.
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Counsel’s response and privilege logs were precise enough to leave no
question as to the applicability of privilege. The respective burdens of proof
were satisfied to make any in camera review unnecessary. In fact, it would
have been error for the trial court to conduct an in camera review, as there
was no need to review documents, and therefore invade privilege, to
determine if documents were privileged, given the requests and responses
thereto. Discovery requests were made and privilege objections were
asserted. Defense counsel met the burden of proof of establishing the
privileged nature of the requested documents through the precise detail on
the privilege logs. The burden then shifted to requesting counsel to come
forth with reasons why privilege should not apply. He did not do so, thus
leaving the question of privilege to be determined as a matter of law by the
trial court. Farrell, therefore, is easily distinguishable from the instant
appeal. Here, the scope of the request made and the trial court’s inability to
decide the applicability of the privileges claimed, based upon defense counsel’s
inadequate privilege logs, requires an in camera inspection to determine
discoverability of the requested documents. Unlike in Farrell, the September
3, 2015 letter here created a factual issue as to disclosure not satisfactorily
addressed by Erie’s response to the requests. Thus, the trial court could not
determine whether any of the claims materials were subject to disclosure
without an in camera hearing.
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The balancing of competing interests reflected in our case law, which
seeks to protect privilege while not denying access to discoverable materials
when deciding the appropriateness of an in camera inspection, also finds
support in decisional law from our United States Supreme Court.
In United States v. Zolin, 491 U.S. 554 (1989), a case we find
persuasive, the high Court concluded that a complete prohibition against an
opponent’s use of in camera review to establish the applicability of the crime-
fraud exception to the attorney-client privilege was inconsistent with the
policies underlying the privilege. In that case, the IRS petitioned a federal
district court to enforce a summons it served demanding production of
documents, including two tapes, in conjunction with a pending suit.
Interveners responded, opposing production of the materials claiming that the
attorney-client privilege barred the disclosure. The IRS argued that the tapes
fell within the exception to the attorney-client privilege based upon the crime-
fraud exception. It included with its response a declaration by a special agent
that contained partial tape transcripts the IRS lawfully had obtained. In
concluding that an in camera inspection was warranted, the Court, relying
upon the federal common law of privileges, first observed that disclosure of
allegedly privileged material to a court for purposes of determining the merits
of a claim of privilege does not have the legal effect of terminating the
privilege. Id. at 568. The question of the propriety of an inspection then
turned on whether the policies underlying the privilege and its exceptions were
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better fostered by permitting review or by prohibiting it. In the Court’s
opinion, the costs of imposing an absolute bar to in camera inspection to
consider the crime-fraud exception were intolerably high. The Court observed
that “no matter how high the burden of proof which confronts the party
claiming the exception, there are many blatant abuses of privilege which
cannot be substantiated by extrinsic evidence.” Id. at 569. Regardless, the
Court observed that examination, even by a judge alone in chambers, might
in some cases jeopardize the security that the privilege is meant to protect.
Id. at 570. The Court acknowledged concerns that too much judicial inquiry
into a claim of privilege would force disclosure of the thing the privilege was
meant to protect, while a complete abandonment of judicial control would lead
to intolerable abuses. Id. at 570-571. A per se rule that communications in
question may never be considered creates too great an impediment to the
proper functioning of the adversarial process. Id. at 571.
With those precepts in mind, the Court turned to the question of whether
in camera review is always permissible, or whether the party seeking such
review must first make some threshold showing that the review is appropriate.
In fashioning a standard governing in camera review, the Court noted that an
in camera inspection is a smaller intrusion upon the confidentiality of the
attorney-client relationship than public disclosure and, therefore, a lesser
evidentiary showing is needed to trigger in camera review than what would
be required to overcome the privilege. Id. at 572. The Court then announced,
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that to strike a correct balance before engaging in an in camera review to
determine the applicability of an exception to privilege, a judge should require
a showing of a factual basis adequate to support a good faith belief by a
reasonable person that in camera review of materials may reveal evidence to
establish the claim that an exception applies. Id. Once that showing is made,
the decision whether to engage in an in camera review then rests in the sound
discretion of the court. Id. Although not stated by the Court, it naturally
follows that if a good faith factual basis to support an in camera review is
lacking, then an in camera inspection would be inappropriate and
unnecessarily intrude upon privilege. Our Pennsylvania law that shifts the
burden of proof between the party asserting privilege and the party seeking
disclosure, who must set forth facts showing disclosure should be compelled,
is consonant with the balancing standard announced by our United States
Supreme Court.
We therefore clarify and reaffirm our decisional law that holds when a
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, in camera review is not permitted and doing so
would violate privilege. Farrell. Where, however, the request made and the
assertion of privilege by the responding party and/or the proofs offered by the
requesting party render a court unable to determine an issue of privilege, an
in camera examination is appropriate and fully supported by our case law.
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Gocial, Ignelzi, T.M. This approach strikes an appropriate balance between
preserving privilege and protecting a party’s right to discoverable material.
We therefore concur with the parties’ assertions that no conflict exists
in our case law regarding in camera review of documents, as explained by our
discussion of the above-cited authorities. Rather, the divergence of views
here regarding the propriety of an in camera inspection centers around the
parties’ disagreement on whether the present record is sufficient to decide the
questions of privilege without an in camera review. For the reasons stated,
we have concluded that the request made, and Erie’s responses thereto, did
not enable the trial court to decide whether any of the requested documents
were subject to privilege. Therefore, an in camera inspection was
appropriately ordered.
Having determined that the current discovery dispute is amenable to an
in camera inspection, we now address whether the subject order is appealable
under the collateral order doctrine. Boiled to its essence, what presents before
us is an appeal from an interlocutory order that has not compelled production
of protected documents, but one that at this juncture has only ordered an in
camera review. We have already accepted for purposes of review that the
first and second prongs of the collateral order doctrine, as reflected in
Pa.R.A.P. 313, are satisfied; the issue is separable from the main cause of
action, and the issue is too important to be denied review. We now address
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the third and final prong to determine if Erie’s right to non-disclosure of
protected documents will be lost if left for review until final judgment.
We emphasize that what is before us is an order directing production of
documents for in camera review and not one ordering production of
documents to a requesting party, where disclosure would irreparably destroy
privilege if documents were ordered to be produced in error. Since we have
concluded that an in camera inspection is appropriate here, Erie has not lost
its right to contest the ordered production of any claims materials if so ordered
by the trial court after inspection, but before production. Unlike Farrell, the
trial court at present has not suggested it will disseminate any information to
the Fishers.10 Accordingly, the order properly directing in camera inspection
fails to satisfy the third prong of the collateral order test and, therefore, we
do not possess jurisdiction to hear this appeal. See Rae, supra, 977 A.2d at
1125 (if the three-pronged “test is not met, and in the absence of another
exception to the final order rule, we have no jurisdiction to consider an appeal
of such an order”).11
____________________________________________
10 We specifically disapprove of a court itself producing documents to any party
after an in camera review, since doing so may deprive the affected party of
any continuing right to contest production and cause irreparable harm to the
party claiming privilege.
11 We observe, but do not herein decide, that in the event Erie is ordered,
after an in camera inspection, to produce documents it believes are protected
by the attorney-client privilege or the work product doctrine, Erie may at that
time again seek to appeal the production order as collateral.
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The effect of our holding today on whether an order directing in camera
review is subject to immediate collateral appeal under Rule 313 is twofold.
Where a record is clear that privilege properly has been invoked and any
evidence of a requesting party has not refuted this showing, in camera review,
which would invade privilege, is inappropriate and the threat of disclosure
under those circumstances may justify immediate collateral review. Where,
however, privilege has been asserted but facts have been presented that an
exception to privilege may apply, a court in its discretion may order in camera
review of the disputed materials. The order would not qualify for immediate
collateral review, since the party asserting privilege would not have lost the
ability to challenge disclosure until a final judgment. The circumstances
justifying in camera review would not render the order directing in camera
review immediately appealable as a collateral order. In the event disclosure
is ordered after an in camera review, the party asserting privilege may at that
time seek collateral review, since the disclosure of documents cannot be
undone and subsequent appellate review would be rendered moot.
Appeal quashed.12
____________________________________________
12 In its last issue, Erie argues the trial court erred by characterizing Erie’s
objections as general, since it properly invoked the privileges. In light of our
disposition addressing the privileges, we need not address this last issue to
which Erie devotes less than a single page of argument in its principal brief to
this Court.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/25/2021
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