Abraham, J. v. Phillips, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. ABRAHAM, M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSICA PHILLIPS AND REID :
PHILLIPS :
: No. 1050 EDA 2021
:
APPEAL OF: THOMAS JEFFERSON :
UNIVERSITY :
Appeal from the Order Entered May 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): June Term, 2019 No. 06650
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 12, 2022
Thomas Jefferson University (“Jefferson”) appeals from a discovery
order requiring it to produce a Title IX investigation report (“the Report”) over
its claim of attorney-client privilege. We affirm.
Jessica Phillips, a student and medical resident at Jefferson, filed a Title
IX complaint with Jefferson against John J. Abraham, M.D., a professor at
Jefferson and an attending physician at a related hospital. Phillips alleged
Abraham had raped her at a party at his home. Jefferson engaged outside
counsel to conduct an investigation, and counsel produced the Report.
Abraham initiated the instant lawsuit against Phillips and her husband,
Reid Phillips (collectively, with Abraham, “Appellees”). Abraham brought
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* Retired Senior Judge assigned to the Superior Court.
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claims of libel, slander, and related torts. The Phillipses filed counterclaims,
including assault and battery. Jefferson is not a party to the lawsuit.
The Phillipses served a subpoena on Jefferson for “[a]ny and all
documents pertaining to or relating to the Title IX inquiry and/or investigation
and/or proceedings[.]” Objections and Response to Subpoena Pursuant to
Rule 4009.21, 2/1/21, at Ex. 1. Jefferson produced some documents in
response and also served objections. It objected that the subpoena, among
other things, sought documents protected from disclosure by the attorney-
client privilege. It provided a privilege log identifying the Report and listing it
as protected by attorney-client privilege. See Phillipses’ Motion to Compel
Discovery Directed to Thomas Jefferson University, Ex. E, at 1.
Appellees filed a Joint Motion to Compel Discovery, seeking a copy of
the Report. They asserted the investigation that was the subject of the Report
“was conducted pursuant to the TJU Title IX Policy,” rather than to secure
legal services or in anticipation of litigation. Joint Motion to Compel Discovery,
4/5/22, at ¶ 4. They further argued Jefferson had “not produced any
documents identifying how or why the law firm [that created the Report] was
retained or who the alleged client of the law firm may have been.” Id. They
also contended that the privilege could not apply because the Report was not
a “communication,” “but rather a report of facts and factual findings.” Id. at
¶ 16.
Appellees argued that even if the privilege could apply, Jefferson had
waived it by disclosing the Report to third parties. According to Appellees, Dr.
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Abraham is an employee of an orthopedic institute, the Rothman Institute.
Appellees alleged that Jefferson had disclosed the Report to two other
employees of the Institute—Drs. Alexander Vaccaro and James Purtill. Id. at
¶ 6. Appellees further claimed that Jefferson had disclosed the
“determinations” of the Report to the Board of Directors of the Rothman
Institute. Id.1
In support, Appellees attached to their motion a copy of a letter to
Phillips from Jefferson’s Title IX coordinator. The letter stated that Jefferson
had received notice of the alleged incident, which, “if substantiated, would
constitute a violation of the University’s Sexual Misconduct Policy,” and that
“[i]t is determined that an investigation into these allegations will be
conducted.” Id., Ex. A. The letter asked Phillips to provide the names of
potential witnesses to the incident and invited her to submit a written
statement. It also “highly recommended” that Phillips not discuss the incident
with anyone else, “to allow the investigation to proceed without compromise.”
Id. The Motion stated that Appellees did not oppose the redaction of the
names of witnesses from the Report “pursuant to any sort of confidentiality
granted such witnesses.” Joint Motion to Compel at ¶ 8 n.1.
Jefferson argued in opposition that it had “retained outside counsel to
conduct an investigation and to render legal advice regarding the Title IX
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1 Appellees also argued that Abraham had filed a separate action against
Jefferson in federal district court, and that “the Report will no doubt be subject
to disclosure through the discovery process in that litigation[.]” Joint Motion
to Compel at ¶ 12.
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complaint.” Memorandum of Law in Opposition to Appellees’ Joint Motion to
Compel Discovery, 4/19/21, at 2; see also id. at 6 (arguing Jefferson retained
counsel “to conduct an independent and external investigation into the Title
IX matter, so as to be able to provide advice to Jefferson relating to the
incident and claims . . . and assess its compliance with Title IX”). Jefferson
stated counsel had “conducted an extensive investigation, including
conducting interviews of individuals” and that it had “advised these individuals
that any information disclosed in connection with the investigation would be
kept confidential.” Id. at 4. Jefferson argued the Report was therefore
protected by attorney-client privilege.
Jefferson further argued that it had not waived the privilege by
disclosing the Report to any third parties. It asserted that Dr. Vaccaro and Dr.
Purtill were de facto employees of Jefferson and therefore entitled to read the
communications from Jefferson’s counsel. Id. at 7. Jefferson also averred it
had never disclosed the Report to the Rothman Institute Board of Directors.
Id. Abraham filed a supplemental memorandum of law, pointing out that in
another lawsuit, Jefferson denied having any agency relationship with Dr.
Vaccaro.
The court granted the Motion in part and denied it in part. It ordered
Jefferson to produce a copy of the Report, but allowed it to redact any
“communications subject a claim of attorney-client privilege,” which “may be
subject to further review by [the c]ourt.” Order, 5/11/21, at 1. In its Rule
1925(a) opinion, the court explained that it agreed with Appellees’ arguments
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that the witness interviews conducted by counsel were not privileged as they
“were simply the factual findings within the report[.]” Trial Court Opinion,
12/22/21, at 4-5. The court also agreed with Appellees that the Report was
not “secured for either an opinion of law, legal services or assistance in a legal
matter” but was “made pursuant to [Jefferson’s] Title IX policy.” Id. at 4.
Jefferson filed a Notice of Appeal. It raises the following issues:
1. Whether the Trial Court erred in granting, in part, [Appellees’]
Joint Motion to Compel Discovery.
2. Whether the Trial Court erred in ordering production of a Title
IX Investigation Report, which was prepared by counsel for
Jefferson, where Jefferson hired outside counsel to conduct an
investigation and prepare a report for purposes of providing legal
advice as to the Title IX matter.
3. Whether the Trial Court erred in ordering production of the Title
IX Investigation Report, by failing to determine which specific
portions of the report were protected from disclosure by the
attorney-client privilege, or otherwise identifying the specific
portions Jefferson was ordered to produce in unredacted form.
Jefferson’s Br. at 4 (answers omitted).
We first address the Appellees’ contention that this appeal is from an
unappealable “routine discovery order,” and not an immediately appealable,
collateral order. See Phillips’ Br. at 9. We must resolve this question first as
it implicates our jurisdiction. Knopick v. Boyle, 189 A.3d 432, 436 (Pa.Super.
2018).
A collateral order is one that is “separable from and collateral to the
main cause of action where the right involved is too important to be denied
review and the question presented is such that if review is postponed until
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final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).
As a rule, orders “overruling claims of privilege and requiring disclosure are
immediately appealable” as collateral orders. Commonwealth v. Williams,
86 A.3d 771, 780 (Pa. 2014) (quoting Commonwealth v. Harris, 32 A.3d
243, 252 (Pa. 2011)). However, when a party contests the appealability of an
order rejecting an assertion of privilege, the Pennsylvania Supreme Court has
advised that “it is prudent” to resolve whether the order is truly collateral. Id.We conclude the order under review is collateral as defined by the Rule.
First, the issue of whether the Report is privileged is separable from the main
cause of action because it “can be resolved without an analysis of the merits
of the underlying dispute.” Id. at 781. The issue of whether the Report is
privileged does not require any inquiry as to whether Appellees are liable for
the claims made against them. Indeed, if this issue were dispositive of the
underlying claims, it is unlikely that Appellees would have joined forces in this
appeal.
Second, whether the Report is privileged is an issue that is too important
to be denied immediate review. That is because the interests protected by
attorney-client privilege “are significant relative to the efficiency interests
served by the final order rule.” Id. at 782. The Supreme Court has consistently
“recognize[d] that exercise of a privilege is an important right deeply rooted
in public policy.” Id. Accordingly, the Supreme Court and this Court have
allowed collateral appeals of other orders requiring the disclosure of
documents purportedly protected by attorney-client privilege. See, e.g., In
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re Est. of McAleer, 248 A.3d 416, 425 (Pa. 2021); Ford-Bey v. Prof’l
Anesthesia Servs. of N. Am., LLC, 229 A.3d 984, 988 n.4 (Pa.Super.),
appeal denied, 242 A.3d 1251 (Pa. 2020).
Third, the claim of attorney-client privilege will be irreparably lost if the
issue is put off until the case is resolved, as the trial court has ordered
Jefferson to produce the Report. “Once putatively privileged material is in the
open, the bell has been rung, and cannot be unrung by a later appeal.”
Williams, 86 A.3d at 784 (quoting Harris, 32 A.3d at 249) (brackets
omitted).
As we find the test for a collateral order has been satisfied, we turn to
the merits of the appeal. Whether a particular document is protected from
disclosure by attorney-client privilege is a question of law. Newsuan v.
Republic Servs. Inc., 213 A.3d 279, 284 (Pa.Super. 2019). We therefore
employ a de novo standard of review. Id. Our scope of review is plenary. Id.Jefferson argues2 the entire Report is legal advice protected from
disclosure by attorney-client privilege because it was prepared for Jefferson,
in response to the Title IX complaint, by counsel whom Jefferson had retained
for that purpose. Jefferson contends that because it has made these
assertions, it has “set forth sufficient facts showing that the privilege was
properly invoked,” and the burden shifts to Appellees to prove that Jefferson
has waived its attorney-client privilege. Jefferson’s Reply Br. at 8.
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2Jefferson does not divide its argument into sections corresponding to the
questions presented, in contravention of Pa.R.A.P. 2119(a).
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Jefferson also argues the court erred in entering an order allowing it to
redact the portions of the report subject to attorney-client privilege without
first identifying the portions of the Report the court believes are privileged.
Jefferson argues it was the court’s duty to “perform an adequate analysis of
the withheld information and determine whether the withheld information is
privileged and protected from disclosure.” Jefferson’s Br. at 14.3
Attorney-client privilege is codified by statute as follows. “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. The purpose of the attorney-client
privilege is to effectuate sound legal representation fostered by honest and
frank communication between attorney and client. BouSamra v. Excela
Health, 210 A.3d 967, 982 (Pa. 2019). However, because application of the
privilege prevents the factfinder from considering relevant information, the
privilege is to be construed narrowly, and applies only where necessary to
achieve its intended purpose. In re Est. of McAleer, 248 A.3d at 426.
Pennsylvania applies a burden-shifting framework to the attorney-client
privilege analysis. First, “[t]he party invoking the privilege must initially set
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3 Jefferson also argues that it did not waive privilege by disclosing the Report
to any third parties. As we determine Jefferson has failed to establish the
Report is privileged, we need not address waiver.
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forth facts showing that the privilege has been properly invoked.” Knopick,
189 A.3d at 439. The party must establish four elements:
1) The asserted holder of the privilege is or sought to become a
client.
2) The person to whom the communication was made [or the
person who made the communication] is a member of the bar of
a court, or his subordinate.
3) The communication relates to a fact of which the attorney was
informed by his client, without the presence of strangers, for the
purpose of securing [or providing] either an opinion of law, legal
services or assistance in a legal matter, and not for the purpose
of committing a crime or tort.
4) The privilege has been claimed and is not waived by the client.
Ford-Bey, 229 A.3d at 990-91 (citation omitted).4 Establishing that the
privilege applies “often entails an affidavit, statement, or testimony clarifying
the circumstances under which the communication was made.” Id. at 991.
If the party invoking the privilege has set forth sufficient facts to invoke
the privilege, then the burden shifts to the party seeking disclosure. That party
may overcome the claim of privilege by “setting 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.” Knopick, 189
A.3d at 439. Conversely, if the party asserting the privilege fails to carry its
initial burden to invoke the privilege, “then the burden never shifts to the
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4 See Knopick, 189 A.3d at 440 (“[I]n Pennsylvania, the attorney-client
privilege operates in a two-way fashion to protect confidential client-to-
attorney or attorney-to-client communications made for the purpose of
obtaining or providing professional legal advice”).
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other party, and the communication is not protected under attorney-client
privilege.” Id.; see Custom Designs & Mfg. Co. v. Sherwin-Williams Co.,
39 A.3d 372, 379 (Pa.Super. 2012) (holding party had failed to properly
invoke attorney-client privilege where party had “not presented an affidavit,
statement, or testimony by [counsel] to clarify whether [counsel] requested
[party] produce the memoranda at issue or for what purpose [counsel]
requested [it]”).
In addition, as the privilege applies only to communications made for
the purpose of providing legal assistance, it will not protect against the
disclosure of underlying facts or “protect clients from factual investigations.”
Custom Designs & Mfg. Co., 39 A.3d at 378 (citation omitted); see also
Gillard v. AIG Ins. Co., 15 A.3d 44, 52 n. 8 (Pa. 2011). A fact is not
transformed into privileged information “solely by virtue of its having been
communicated [by] counsel.” Custom Designs & Mfg. Co., 39 A.3d at 378.
We conclude that Jefferson failed to carry its initial burden to invoke the
privilege to the entire Report. While Jefferson averred the Report was created
by counsel it retained in response to a Title IX claim, Jefferson did not provide
an affidavit, a copy of its agreement with counsel, or any other evidence
explaining the scope or purpose of the Report. The only evidence of record on
this score is the letter the Phillipses produced stating the Report would be
generated as a matter of course according to Jefferson’s routine internal Title
IX policies. See Joint Motion to Compel Discovery at Ex. A. While it is possible
that Jefferson’s Title IX policies requiring an investigation and report may be
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intended provide Jefferson with legal advice, it is also possible that the policies
are intended to provide Jefferson with purely factual information. Jefferson
failed to sufficiently elaborate on those policies, or specify in what manner the
Report provides “either an opinion of law, legal services or assistance in a
legal matter.” Ford-Bey, 229 A.3d at 990-91; see Custom Designs & Mfg.
Co., 39 A.3d at 379.
Even assuming the Report was created by Jefferson’s counsel in
anticipation of litigation, Jefferson made no proffer regarding the contents of
the Report that would lead to a conclusion that the Report is privileged in its
entirety. We do not have access to the report, and Jefferson’s proffer is all we
have to go on. The only proffer regarding the contents of the Report has been
that the Report was created using witness interviews. See Memorandum of
Law in Opposition to Appellees’ Joint Motion to Compel Discovery at 4.
Indeed, Jefferson has revealed little about the Report. It did not explain
whether the Report contains recordings of the interviews, transcriptions of the
interviews, or counsel’s summarizations or impressions of the interviews. Nor
did Jefferson assert that any of the interviewees wish to assert attorney-client
privilege; that is, Jefferson did not assert that any of the interviewees are
Jefferson employees, have any legal interest in the matter, sought legal advice
during the interviews, or were led to believe they were confiding in counsel
acting on their own behalf. Nor did Jefferson explain whether the Report
contains factual data aside from witness interviews, such as photographs or
telephone records. Jefferson cannot convert such materials into non-
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discoverable items simply by embedding them within a “communication.”
Custom Designs & Mfg. Co., 39 A.3d at 378.
Ultimately, Jefferson failed to provide sufficient facts for the trial court
to rule that the Report is privileged in its entirety or that any of the specific
contents of the Report are privileged. The trial court therefore did not err in
ordering Jefferson to produce the Report, particularly as the court’s order
allows Jefferson to redact any potentially privileged portions of the Report and
to submit them to the court for further review.
Regarding Jefferson’s argument that the court erred in failing to specify
the portions of the Report that might be privileged, we find the argument
waived. Jefferson never requested the court conduct an in camera review of
the Report, or offer any explanation of the various contents of the Report, but
advanced only that the Report was privileged in its entirety. Jefferson cannot
make this argument for the first time on appeal. See Pa.R.A.P. 302(a).
Moreover, the cases Jefferson cites in support of this point are
distinguishable. In each case, we remanded because the trial court’s ruling
covered multiple documents and the trial court had failed to conduct an
appropriate inquiry into whether attorney-client privilege applied before
broadly ordering the items discoverable.5 Here, the trial court was considering
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5 In Gocial v. Indep. Blue Cross, 827 A.2d 1216, 1223 (Pa.Super. 2003),
the trial court deemed an entire privilege log discoverable, rather than ruling
on the relevance of each item or reviewing the privileges applicable to each
item. We remanded so the trial court could consider each document and
(Footnote Continued Next Page)
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only one document—the Report—and duly considered the evidence and
argument presented by Jefferson and Appellees and aptly applied the statute
and jurisprudence governing the application of attorney-client privilege.
Jefferson’s assertion the court erred in failing to specify which portions of the
Report might be privileged—when Jefferson gave the court no reason to
conclude any portion is privileged—inappropriately shifts the burden of
proving privilege from Jefferson to the court.
Finally, the court’s order provides that Jefferson may redact any
material subject to attorney-client privilege and submit it for further review.
Therefore, there is nothing to prevent Jefferson from submitting the entire
Report to the court for an in camera review, to assist Jefferson in complying
with the order. In this regard, Jefferson’s argument that the court has failed
to adequately specify which portions of the Report are privileged is premature.
Order affirmed.
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observed that “in camera review may be required.” Id. Similarly, in
Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1127
(Pa.Super. 2007), the trial court entered a sweeping order granting numerous
discovery requests without discussing whether privilege applied or considering
whether the information would lead to the discovery of admissible evidence.
We remanded for the court to “consider, rule on, and explain its rulings
regarding each . . . discovery request[.]” Id. We again advised that in camera
review and redaction might be required. Finally, in T.M. v. Elwyn, Inc., 950
A.2d 1050, 1063 (Pa.Super. 2008), we held the trial court’s orders requiring
the defendants to disclose all relevant documents were overly broad and
remanded for a consideration of whether the attorney-client privilege applied
to any of the documents covered by the orders. As in the other cases, we
stated the court may conduct in camera review, as needed. Id.- 13 -
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2022
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