Perelman, J. v. Raymond G. Perelman Revocable Trust ( 2021 )

J-A04015-21
2021 PA Super 145JEFFREY E. PERELMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAYMOND G. PERELMAN REVOCABLE :
TRUST, SUCCESSOR TO RAYMOND G. :
PERELMAN, DECEASED, DILWORTH :
PAXSON, LLP, JOSEPH JACOVINI, :
LAWRENCE MCMICHAEL, MARJORIE :
OBOD, HAINES & ASSOCIATES, :
CLIFFORD E. HAINES, THE ESTATE :
OF RAYMOND G. PERELMAN, JEFFREY :
E. PERELMAN AND JEP :
MANAGEMENT, INC., COZEN :
O'CONNOR, P.C., STEPHEN A. :
COZEN, AND BRIAN P. FLAHERTY :
:
APPEAL OF: RAYMOND G. PERELMAN :
REVOCABLE TRUST, SUCCESSOR TO :
DEFENDANT RAYMOND G. :
PERELMAN, DECEASED, AND THE :
ESTATE OF RAYMOND G. PERELMAN, :
BY AND THROUGH ITS PERSONAL :
REPRESENTATIVES, RONALD O. :
PERELMAN AND DEBRA PERELMAN : No. 1464 EDA 2020
Appeal from the Order Entered July 20, 2020
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): No. 2013-27085
BEFORE: KUNSELMAN, J., KING, J., and PELLEGRINI, J.*
OPINION BY KING, J.: FILED JULY 16, 2021
Appellants, the Raymond G. Perelman Revocable Trust, successor to
defendant Raymond G. Perelman, deceased, and the estate of Raymond G.
Perelman, by and through its personal representatives, Ronald O. Perelman
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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and Debra Perelman, appeal from the order entered in the Montgomery
County Court of Common Pleas, which denied their motion for protective order
and directed Appellee, Cozen O’Connor, P.C. (“Cozen”), to produce certain
documents during discovery. We affirm in part, reverse in part, and remand
for further proceedings.
The trial court opinion set forth the relevant facts and procedural history
of this appeal as follows:
In this case, [Appellees] Jeffrey E. Perelman and JEP
Management, Inc., [(“JEP”)] brought a Dragonetti action[1]
against [Appellees] Cozen O’Connor, Stephen A. Cozen, and
Brian P. Flaherty [collectively (“Cozen”)] and [Appellants].
[JEP alleges] wrongful use of civil proceedings by [Cozen]
during representation of [its] then-client—and Plaintiff
Jeffrey E. Perelman’s father—Raymond G. Perelman, in a
series of past lawsuits against Jeffrey E. Perelman.
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1 The Dragonetti Act, 42 Pa.C.S.A. §§ 8351-8354, sets forth the following
elements for a wrongful use of civil proceedings claim:
§ 8351. Wrongful use of civil proceedings
(a) Elements of action.—A person who takes part in
the procurement, initiation or continuation of civil
proceedings against another is subject to liability to the
other for wrongful use of civil proceedings [if]:
(1) he acts in a grossly negligent manner or
without probable cause and primarily for a purpose other
than that of securing the proper discovery, joinder of
parties or adjudication of the claim in which the
proceedings are based; and
(2) the proceedings have terminated in favor of
the person against whom they are brought.
42 Pa.C.S.A. § 8351(a)(1), (2).
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Specifically, [JEP alleges] that [Cozen] knew there was no
basis to pursue the claims they initiated against Jeffrey.
The instant appeal arises out of a discovery dispute
surrounding production of a handful of documents by
[Cozen]. The documents in question were generated in
connection with [Cozen’s] representation of Raymond G.
Perelman in his prior actions against Jeffrey E. Perelman,
the plaintiff in the present Dragonetti action. On February
20, 2020, [Appellants] filed a motion for protective order
concerning privileged documents, to which [Cozen] and
[JEP] filed separate responses. [Appellants] filed a reply to
[JEP’s] opposition to their motion for protective order.
Specifically, there are nineteen (19) documents at issue in
[Appellants’] motion for protective order, with [Appellants]
requesting that the court issue a protective order preventing
production of eighteen (18) of these. Of these documents,
[Cozen] identified two as protected by both the work-
product doctrine and by attorney-client privilege, one
subject to no protections, and the remaining sixteen (16)
protected by only the work-product doctrine.[2] [Appellants]
assert that the eighteen (18) documents must not be
produced, being subject to one or both of these privileges.
[Cozen], on the other hand, maintain[s] that [it is]
permitted to produce all of these documents, pursuant to
Pennsylvania Rule of Professional Conduct 1.6(c)(4)’s self-
defense exception. [JEP] also opposed the motion for
protective order, taking the position that the documents at
issue should be produced by [Cozen].
Beyond the issue of mere production of these nineteen (19)
documents, the motion for protective order also implicates
questions of waiver of privilege as to other documents not
before the court at this time. Both [Appellants] and [Cozen]
requested that this court enter an order expressly ruling that
neither waived their privileges as to other potentially
confidential documents relating to the same subject
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2 On January 20, 2020, Cozen forwarded a chart to JEP, which provided a brief
description and asserted the applicable privilege for each of the documents
Cozen sought to produce. (See Motion for Protective Order, filed 2/20/20, at
¶4; Memorandum of Law, filed 2/20/20, at Exhibit A).
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matter.[3] In their response in opposition to the motion for
protective order, [JEP] argued that the court should decline
to rule on the privileges afforded to any other documents
beyond the nineteen (19) before it in the motion for
protective order and instead defer such ruling to a later
time, only after production of other documents or
information is actually sought by [JEP].
Following argument before Discovery Master Andrew L.
Braunfeld, the court denied [Appellants’] motion for
protective order in an order dated July 20, 2020.
(Trial Court Opinion, filed October 5, 2020, at 1-3) (internal citations to the
record, quotation marks, and some capitalization omitted).
Specifically, the trial court ordered Cozen to produce the disputed
____________________________________________
3 If the court permitted Cozen to produce the documents at issue, Appellants
specifically requested alternative relief in the form of an order recognizing
that:
(a) they have not waived Mr. Perelman’s privileges
concerning those documents or Mr. Perelman’s privileges as
to other confidential communications relating to the same
subject matter in those documents;
(b) [Cozen has] not waived Mr. Perelman’s privileges
concerning those documents or Mr. Perelman’s privileges as
to other confidential communications relating to the same
subject matter in those documents;
(c) the privilege(s) of any other party affected by
those documents who may assert a privilege has not been
waived; and
(d) any privilege asserted in connection with those
documents is preserved and any privilege asserted as to
other confidential communications relating to the same
subject matter in those documents is preserved.
(Motion for Protective Order at ¶9).
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documents regardless of their containing information that applies within
attorney-client privilege, attorney work-product, or both. (See Order, filed
7/20/20, at ¶2). Further, the court declined to rule on the question of waiver,
instead stating that the court would address future issues of privilege as they
might arise. (Id. at ¶4).
Appellants timely filed a notice of appeal on August 5, 2020. On August
10, 2020, the court ordered Appellants to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellants timely filed their Rule
1925(b) statement on August 31, 2020.
Appellants now raise two issues for our review:
Did the trial court err by ordering production of the 18
documents on grounds that (a) the “self-defense” exception
to Pa.R.P.C. 1.6 overrides the attorney-client privilege and
work product protection concerning those documents, an
issue of first impression under Pennsylvania law, and (b) the
explanatory comments to Pa.R.Civ.P. 4003.3 also permit
production of the documents in this subsequent action?
Did the trial court err by declining to grant the alternative
relief requested by the client in the event the trial court
ordered the lawyers to produce the 18 documents—
specifically, a ruling that the client preserved his attorney-
client privilege and work product protection to protect
discovery concerning documents ordered for production and
their subject matters, thereby disregarding the narrow
scope of the “self-defense” exception to Rule 1.6?
(Appellants’ Brief at 5-6).
As a prefatory matter, “[a]n appeal may be taken only from a final order
unless otherwise permitted by statute or rule.” Carbis Walker, LLP v. Hill,
Barth and King, LLC, 930 A.2d 573, 577 (Pa.Super. 2007) (quoting Ben v.
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Schwartz, 556 Pa. 475, 481, 729 A.2d 547, 550 (1999)). Collateral orders
are an exception to this general rule. See Pa.R.A.P. 313.
To qualify as a collateral order under Rule 313, the order
must be separate and distinct from the underlying cause of
action. Additionally, it is not sufficient that the issue under
review is important to a particular party; it must involve
rights deeply rooted in public policy going beyond the
particular litigation at hand. Finally, there must be no
effective means of review available after an Order requiring
the production of documents is reduced to judgment.
Significantly, Pennsylvania courts have held that discovery
orders involving potentially confidential and privileged
materials are immediately appealable as collateral to the
principal action. This Court has also recognized that an
appellant’s colorable claim of attorney-client and attorney
work-product privilege can establish the propriety of
immediate appellate review.
Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123-24
(Pa.Super. 2007) (internal citations and quotation marks omitted).
Here, the order at issue is separable from the main cause of action, as
this Court can address Appellants’ claims of privilege without an analysis of
the underlying Dragonetti action. Additionally, the issues of attorney-client
privilege and the work-product doctrine implicate rights deeply rooted in
public policy. See id. Further, enforcement of the order would allow Cozen
to disclose the disputed documents. Thus, there would be no effective means
of review available. Id. Accordingly, the order on appeal is collateral to the
main cause of action and immediately appealable. Id.In their first issue, Appellants contend the attorney-client privilege
protects confidential client-to-attorney or attorney-to-client communications
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made for the purpose of obtaining or providing professional legal advice.
Appellants also assert that Pa.R.C.P. 4003.3 prohibits discovery of attorney
work product, including “mental impressions of a party’s attorney or his or her
conclusions, opinions, memoranda, notes or summaries, legal research or
legal theories.” (Appellants’ Brief at 21) (quoting Pa.R.C.P. 4003.3).
Appellants acknowledge the “self-defense” exception in Pa.R.P.C. 1.6(c)(4),
which the trial court cited to support disclosure of the privileged documents.
Appellants insist, however, that there is no Pennsylvania appellate authority
holding that Rule 1.6(c)(4) nullifies attorney-client privilege and the work-
product doctrine such that production of the privileged documents is required
in this case. Moreover, Appellants maintain that the Rules of Professional
Conduct are not substantive law. (See id. at 23) (citing Commonwealth v.
Chmiel, 558 Pa. 478, 495, 738 A.2d 406, 415 (1999), cert. denied, 528 U.S.
1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000)).
Further, Appellants aver that the trial court erroneously relied upon the
explanatory comment to Pa.R.C.P. 4003.3 to support its decision regarding
disclosure. Appellants argue that “the facts of the subject discovery dispute
differ from the two scenarios noted in paragraphs 3 and 4 of the explanatory
comments.” (Appellants’ Brief at 27). Appellants also claim that “explanatory
comments are non-binding ‘since [they] have not been officially adopted or
promulgated by [our Supreme] Court, nor do they constitute part of the rule.’”
(Id.) (quoting In re Estate of Plance, 644 Pa. 232, 270 n.13, 175 A.3d 249,
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272 n.13 (2017)). Based upon the foregoing, Appellants insist that the court
committed an error of law in determining that Appellants’ assertion of privilege
is subordinate to the self-defense exception in Pa.R.P.C. 1.6. Appellants
conclude that this Court must reverse the order denying their motion for
protective order. We disagree.
“Generally, on review of an order concerning discovery, an appellate
court applies an abuse of discretion standard. To the extent that the question
involves a pure issue of law, our scope … of review [is] plenary.”
Berkeyheiser, supra at 1125 (quoting Crum v. Bridgestone/Firestone
North American Tire, LLC, 907 A.2d 578, 585 (Pa.Super. 2006)). “The trial
court is responsible for ‘[overseeing] discovery between the parties and
therefore it is within that court’s discretion to determine the appropriate
measure necessary to insure adequate and prompt discovering of matters
allowed by the Rules of Civil Procedure.’” Id. (quoting PECO Energy Co. v.
Insurance Co. of North America, 852 A.2d 1230, 1233 (Pa.Super. 2004)).
Pennsylvania Rule of Civil Procedure 4003.1 governs the scope of
discovery as follows:
Rule 4003.1. Scope of Discovery Generally. Opinions
and Contentions
(a) Subject to the provisions of Rules 4003.2 to 4003.5
inclusive and Rule 4011, a party may obtain discovery
regarding any matter, not privileged, which is relevant to
the subject matter involved in the pending action, whether
it relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other party,
including the existence, description, nature, content,
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custody, condition and location of any books, documents, or
other tangible things and the identity and location of
persons having knowledge of any discoverable matter.
Pa.R.C.P. 4003.1(a) (emphasis added).
“Certain materials are privileged and beyond the scope of discovery.”
Berkeyheiser, supra at 1126. “[T]he attorney-client privilege has deep
historical roots and indeed is the oldest of the privileges for confidential
communications in common law.” Red Vision Systems, Inc. v. National
Real Estate Information Services, L.P., 108 A.3d 54, 60 (Pa.Super. 2015),
appeal denied, 632 Pa. 663, 116 A.3d 605 (2015). The privilege is defined by
statute as follows:
§ 5928. Confidential communications to attorney
In 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.
42 Pa.C.S.A. § 5928.
“Despite the language of the statute, communications from an attorney
to a client—not just communications by a client to an attorney—are protected
under Pennsylvania law.” Office of Disciplinary Counsel v. Baldwin, ___
Pa. ___, ___, 225 A.3d 817, 849 (2020). “The purpose of the attorney-client
privilege is to ‘foster a confidence between attorney and client that will lead
to a trusting and open dialogue.’” Berkeyheiser, supra at 1126 (quoting
Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222 (Pa.Super.
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2003)).
The attorney-client privilege is not absolute. See Red Vision Systems,
supra at 62. “The privilege exists only to aid in the administration of justice,
and when it is shown that the interests of the administration of justice can
only be frustrated by the exercise of the privilege, the trial judge may require
that the communication be disclosed.” Id. (quoting Cohen v. Jenkintown
Cab Co., 357 A.2d 689, 693-94 (Pa.Super. 1976)).
Unlike the attorney-client privilege, the work-product privilege “does not
necessarily involve communications with a client.” Gillard v. AIG Ins. Co.,
609 Pa. 65, 89 n.16, 15 A.3d 44, 59 n.16 (2011). Pennsylvania Rule of Civil
Procedure 4003.3 governs attorney work product as follows:
Rule 4003.3. Scope of Discovery. Trial Preparation
Material Generally
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 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.
Explanatory Comment—1978
The amended Rule radically changes the prior practice as
to discovery of documents, reports and tangible things
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prepared in anticipation of litigation or for trial by or for
another party or by or for that party’s representative,
including his attorney, consultant, surety, indemnitor,
insurer or agent.
* * *
There are, however, situations under the Rule where the
legal opinion of an attorney becomes a relevant issue in an
action; for example, an action for malicious prosecution or
abuse of process where the defense is based on a good faith
reliance on a legal opinion of counsel. The opinion becomes
a relevant piece of evidence for the defendant, upon which
defendant will rely. The opinion, even though it may have
been sought in anticipation of possible future litigation, is
not protected against discovery. A defendant may not base
his defense upon an opinion of counsel and at the same time
claim that it is immune from pre-trial disclosure to the
plaintiff.
As to representatives of a party, and sometimes an
attorney, there may be situations where his conclusions or
opinion as to the value or merit of a claim, not discoverable
in the original litigation, should be discoverable in
subsequent litigation. For example, suit is brought against
an insurance carrier for unreasonable refusal to settle,
resulting in a judgment against the insured in an amount in
excess of the insurance coverage. Here discovery and
inspection should be permitted in camera where required to
weed out protected material.
* * *
Pa.R.C.P. 4003.3.
We recognize that evidentiary privileges are not favored. BouSamra
v. Excela Health, 653 Pa. 365, ___, 210 A.3d 967, 975 (2019). “Courts
should permit utilization of an evidentiary privilege ‘only to the very limited
extent that … excluding relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational means for ascertaining
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the truth.’” Id. (quoting Commonwealth v. Stewart, 547 Pa. 277, 282, 690
A.2d 195, 197 (1997)).
Pennsylvania Rule of Professional Conduct 1.6 provides, in pertinent
part, as follows:
Rule 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to
representation of a client unless the client gives informed
consent, except for disclosures that are impliedly authorized
in order to carry out the representation, and except as
stated in paragraphs (b) and (c).
* * *
(c) A lawyer may reveal such information to the extent
that the lawyer reasonably believes necessary:
* * *
(4) to establish a claim or defense on behalf of the
lawyer in a controversy between the lawyer and the client,
to establish a defense to a criminal charge or civil claim or
disciplinary proceeding against the lawyer based upon
conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer’s
representation of the client[.]
Pa.R.P.C. 1.6(a), (c)(4). “The confidentiality provisions of Rule 1.6 provide
broader protections than does the attorney-client privilege.” Baldwin, supra
at ___, 225 A.3d at 843.
An attorney may violate Rule 1.6(a) if he discloses client confidences
“without justification otherwise set forth in Pa.R.P.C. 1.6(c)(3) or (4).” Id.
___, 225 A.3d at 856. Regarding the self-defense exception, the explanatory
comment to Rule 1.6(c)(4) states:
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[W]here a legal claim or disciplinary charge alleges
complicity of the lawyer in a client’s conduct or other
misconduct of the lawyer involving representation of the
client, the lawyer may respond to the extent the lawyer
reasonably believes necessary to establish a defense. The
same is true with respect to a claim involving the conduct
or representation of a former client. Such a charge can arise
in a civil, criminal, disciplinary or other proceeding and can
be based on a wrong allegedly committed by the lawyer
against the client or on a wrong alleged by a third person;
for example, a person claiming to have been defrauded by
the lawyer and client acting together. If the lawyer is
charged with wrongdoing in which the client’s conduct is
implicated, the rule of confidentiality should not prevent the
lawyer from defending against the charge. The lawyer’s
right to respond arises when an assertion of such complicity
has been made. Paragraph (c)(4) does not require the
lawyer to await the commencement of an action or
proceeding that charges such complicity, so that the defense
may be established by responding directly to a third party
who has made such an assertion. The right to defend also
applies, of course, where a proceeding has been
commenced.
Pa.R.P.C. 1.6 Explanatory Comment at ¶14.
Instantly, the trial court relied on Rule 1.6(c)(4) in ordering production
of the documents at issue:
Based upon its plain language, Rule 1.6(c)(4)—and
Comment 14 interpreting this section—clearly governs the
court’s ruling on [Appellants’] motion for protective order,
given that [JEP’s] Dragonetti action against … Cozen is a
“civil claim” based upon allegations relating to a “proceeding
concerning the lawyer’s representation of the client.” That
the Dragonetti action is a third-party claim made by [JEP]
rather than [Appellants] … does not negate Rule 1.6(c)(4)’s
application to the instant case. The broad language of Rule
1.6(c)(4) and Comment 14 simply requires that there be a
“civil claim” or “legal claim” alleging misconduct of the
lawyer arising from representation of a client for the self-
defense exception to apply. Noticeably absent from this rule
is any language limiting its application to only those civil
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claims where a client brings an action against their own
attorney.
(Trial Court Opinion at 7) (internal citation and some capitalization omitted).
Contrary to Appellants’ assertions, the evidentiary privileges protecting
these documents are not absolute or favored. See BouSamra, supra; Red
Vision Systems, supra. Although Appellants correctly note that our Rules
of Professional Conduct do not constitute substantive law, our Supreme Court
has acknowledged that Rule 1.6(c)(4) can provide a justification for a lawyer’s
disclosure of client confidences. See Baldwin, supra. On this record, we
conclude that the court did not commit an error of law in applying the self-
defense exception set forth in Rule 1.6(c)(4).4 See Berkeyheiser, supra.Accordingly, Appellants are not entitled to relief on their first claim.
In their second issue, Appellants contend their motion for protective
order requested alternative relief if the court determined that Pa.R.P.C. 1.6
authorized disclosure of the documents at issue. Specifically, Appellants
“sought a ruling that preserved [their] attorney-client privilege and work
product protection to protect discovery concerning the documents ordered for
production and the subject matter of those documents.” (Appellants’ Brief at
32-33). Appellants assert that the court’s denial of this alternative relief
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4 Regarding Appellants’ argument that the court erroneously relied upon the
explanatory comment to Pa.R.C.P. 4003.3, we need not address this claim
further due to our conclusion that the court properly applied Pa.R.P.C. 1.6.
See In re Jacobs, 15 A.3d 509, 509 n.1 (Pa.Super. 2011) (stating this Court
is not bound by rationale of trial court and may affirm on any basis).
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effectively broadened the scope of the self-defense exception in Pa.R.P.C. 1.6
and exposed Appellants to a claim that they had waived their privileges with
respect to the subject matter of the documents in question. Appellants argue
that Cozen cannot waive Appellants’ privileges, and they need not consent to
Cozen’s production of the documents simply because Cozen believed that
disclosure was necessary.
Moreover, Appellants explain that they did not ask the court to make a
ruling for “other privileges afforded in other documents not before it, future
issues of privilege, or potential future discovery disputes….” (Id. at 36).
Rather, Appellants emphasize that they sought
an order that affirmatively preserved the attorney-client
privileges and work product protections of those 18
documents and of the subject matter of those documents so
that [JEP], or any other party, could not later claim that the
production of the 18 documents selected by [Cozen]
constituted a subject matter or category waiver related to
those documents in other documents, discovery or
information.
(Id. at 36-37) (emphasis omitted). Appellants conclude this Court must
reverse the portion of the court’s order denying Appellants’ request for
alternative relief.
Regarding the request for alternative relief, Cozen maintains Appellants
“have not waived the attorney-client privilege with respect to any documents
whatsoever, nor [has Cozen] waived the work-product protection with respect
to any documents other than the 18 documents at issue.” (Cozen’s Brief at
14). Further, Cozen relies on the explanatory comment to Pa.R.P.C. 1.6 for
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the proposition that any confidential documents that are not necessary for
self-defense will remain confidential. Cozen concludes that this Court should
reverse the trial court’s order “insofar as the order refused to rule that any
privilege or work-product protection asserted as to other confidential
documents—including those relating to the same subject matter—would be
preserved.” (Id.) (emphasis in original). We agree that the portion of the
order denying Appellants’ request for alternative relief must be reversed.
“[B]ecause the purposes of the attorney-client privilege and the work
product doctrine are different, the waiver analysis for each rule necessarily
diverges as well.” BouSamra, supra at ___, 210 A.3d at 977. “Whereas
disclosure to a third party generally waives the attorney-client privilege, the
same cannot be said for application of the work product doctrine because
disclosure does not always undermine its purpose.” Id. at ___, 210 A.3d at
977-78 (internal footnote omitted). See also Baldwin, supra (explaining
attorney may not self-determine waiver absent express consent to disclosure
of confidential communications). “As the purpose of the doctrine must drive
the waiver analysis, … the work product doctrine is waived when the work
product is shared with an adversary, or disclosed in a manner which
significantly increases the likelihood that an adversary or anticipated
adversary will obtain it.” BouSamra, supra at ___, 210 A.3d at 978.
Instantly, the motion for protective order indicated that Appellants did
not consent to Cozen’s production of the eighteen privileged documents. If
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the court allowed Cozen to produce some or all of the documents, however,
Appellants asked the court for an on-the-record statement indicating that
Appellants had not waived their privileges concerning any other confidential
communications regarding the same subject matter.5 (See Motion for
Protective Order at ¶9). Because an attorney may not self-determine waiver
absent a client’s express consent to disclosure of confidential communications,
Appellants did not actually waive their attorney-client privilege with respect to
any documents. See Baldwin, supra.
Likewise, Cozen did not waive attorney work-product protections for any
items other than the eighteen documents subject to disclosure.6 See
BouSamra, supra. See also Bagwell v. Pennsylvania Dept. of Educ.,
103 A.3d 409, 419 (Pa.Cmwlth. 2014) (explaining under federal law, general
rule regarding voluntary disclosure of privileged attorney-client
communications is that disclosure waives privilege as to all other
communications on same subject; however, Pennsylvania courts have not
adopted subject-matter waiver; moreover, selective disclosure of privileged
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5 In their brief, Appellants clarify that they sought “an alternative ruling that
preserved [Appellants’] attorney-client and work product privilege assertions
… so that [JEP], or any other party, could not contend that the production
constituted a subject matter or category waiver of the same subject
matter contained in the 18 documents.” (Appellants’ Brief at 34) (emphasis
added).
6 In Cozen’s answer to the motion for protective order, it admitted that any
privilege asserted as to other confidential communications was preserved.
(See Answer, filed 3/11/20, at 4).
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documents did not constitute subject-matter waiver). Consequently, we
reverse that part of the court’s order that declined to find that the parties had
not waived privileges for other confidential communications relating to the
same subject matter.7 We remand for the entry of an order consistent with
this decision, which grants Appellants’ request for alternative relief.
Order affirmed in part, reversed in part, and case remanded.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2021
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7 In its opinion, the trial court asserted: “To do as [Appellants] requested and
issue an overly-broad blanket order expressly preserving privilege regarding
documents not before it would require a level of clairvoyance improper to task
the court with exercising.” (Trial Court Opinion at 11). We disagree with the
court’s assessment that it needed a “level of clairvoyance” to address
Appellants’ request for alternative relief. Rather than requesting some type
of prophylactic decision about documents not before the court, Appellants
simply sought confirmation of the state of their existing privileges in the wake
of an order requiring production of the documents at issue.
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