Brown, F. v. Greyhound Lines, Inc.

J-A11007-16
2016 Pa. Super. 108
FAITHLEE BROWN; AND JOSEPH HOANG IN THE SUPERIOR COURT OF
AND KENNETH ROTHWEILER, ESQ., CO- PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
SON THI THANH HOANG, DECEASED
AND HIREN PATEL, GUSTAV
FREDERIKSEN, BRANDON OSBORN,
ELORA LENCOSKI, BARBARA YEAGER-
DOYLE, WILLIAM KOOMSON, FNU
SAIFULLAH, KEITH PRESSMAN, CHARLES
REID, MICHAEL KETCHPAW, SURAJ
BALAKRISHNAN AND AHMED ALJAHMI,
Appellees
v.
GREYHOUND LINES, INC., SABRINA
ANDERSON, FIRSTGROUP AMERICA,
C.A.V. ENTERPRISES, LLC, AKOS
GUBICA AND KAROLY GUBICA,
APPEAL OF: FIRSTGROUP AMERICA
No. 1167 EDA 2015
Appeal from the Order Entered April 1, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 131202598
MANAJA LIVINGSTON, DARREN SHIN, IN THE SUPERIOR COURT OF
ROSAURA SANCHEZ, HECTOR AMADO PENNSYLVANIA
SANCHEZ, ROSA MARIA TAPIA, SEMEN
BABADZHANOV AND TATIANA LIAKH,
Appellees
v.
GREYHOUND LINES, INC., SABRINA
ANDERSON, FIRSTGROUP AMERICA,
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J-A11007-16
C.A.V. ENTERPRISES, LLC, AKOS
GUBICA AND KAROLY GUBICA,
APPEAL OF: FIRSTGROUP AMERICA
No. 1169 EDA 2015
Appeal from the Order Entered April 1, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 140402946
FAITHLEE BROWN; AND JOSEPH HOANG IN THE SUPERIOR COURT OF
AND KENNETH ROTHWEILER, ESQ., CO- PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
SON THI THANH HOANG, DECEASED
AND HIREN PATEL, GUSTAV
FREDERIKSEN, BRANDON OSBORN,
ELORA LENCOSKI, BARBARA YEAGER-
DOYLE, WILIAM KOOMSON, FNU
SAIFULLAH, KEITH PRESSMAN, CHARLES
REID, MICHAEL KETCHPAW, SURAJ
BALAKRISHNAN AND AHMED ALJAHMI,
Appellees
v.
GREYHOUND LINES, INC., SABRINA
ANDERSON, FIRSTGROUP AMERICA,
C.A.V. ENTERPRISES, LLC, AKOS
GUBICA AND KAROLY GUBICA,
APPEAL OF: GREYHOUND LINES, INC.
AND SABRINA ANDERSON,
----------------------------------------------
MANAJA LIVINGSTON, DARREN SHIN,
ROSAURA SANCHEZ, HECTOR AMADO
SANCHEZ, ROSA MARIA TAPIA, SEMEN
BABADZHANOV AND TATIANA LIAKH,
v.
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GREYHOUND LINES, INC., SABRINA
ANDERSON, FIRSTGROUP AMERICA,
C.A.V. ENTERPRISES, LLC, AKOS
GUBICA AND KAROLY GUBICA,
APPEAL OF: GREYHOUND LINES, INC.
AND SABRINA ANDERSON
No. 1174 EDA 2015
Appeal from the Order Entered April 1, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 131202598, 140402946
JOSEPH HOANG AND KENNETH IN THE SUPERIOR COURT OF
ROTHWEILER, ESQUIRE, CO- PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
SON THI THANH HOANG, DECEASED,
AND FAITHLEE BROWN, FNU SAIFULLAH
AND KEITH PRESSMAN AND CHARLES
REID AND MICHAEL KETCHPAW AND
SURAJ BALAKRISHNAN AND AHMED
ALJAHMI AND HIREN PATEL AND ERIC
KJELLERSTEDT AND GUSTAV
FREDERIKSEN AND BARBARA YEAGER-
DOYLE AND BRANDON OSBORN AND
ELORA LENCOSKI AND WILLIAM
KOOMSON AND GLORIA KOOMSON,
H/W,
Appellees
v.
GREYHOUND LINES, INC. AND SABRINA
ANDERSON AND FIRSTGROUP AMERICA
AND C.A.V. ENTERPRISES, INC., AND
AKOS GUBICA AND KAROLY GUBICA,
APPEAL OF: GREYHOUND LINES, INC.
AND SABRINA ANDERSON
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J-A11007-16
No. 1602 EDA 2015
Appeal from the Order Entered April 24, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 131202598 Dec. Term 2013
JOSEPH HOANG AND KENNETH IN THE SUPERIOR COURT OF
ROTHWEILER, ESQUIRE, CO- PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
SON THI THANH HOANG, DECEASED,
AND FAITHLEE BROWN AND FNU
SAIFULLAH AND KEITH PRESSMAN AND
CHARLES REID AND MICHAEL
KETCHPAW AND SURAJ BALAKRISHNAN
AND AHMED ALJAHMI AND HIREN PATEL
AND ERIC KJELLERSTEDT AND GUSTAV
FREDERIKSEN AND BARBARA YEAGER-
DOYLE AND BRANDON OSBORN AND
ELORA LENCOSKI AND WILLIAM
KOOMSON AND GLORIA KOOMSON,
H/W,
Appellees
v.
GREYHOUND LINES, INC. AND SABRINA
ANDERSON AND FIRSTGROUP AMERICA,
v.
C.A.V. ENTERPRISES, INC. AND AKOS
GUBICA AND KAROLY GUBICA,
APPEAL OF: FIRSTGROUP AMERICA
No. 1866 EDA 2015
Appeal from the Order Entered June 1, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 131202598, 140402946 (consolidated)
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J-A11007-16
MANAJA LIVINGSTON, DAREN SHIN, IN THE SUPERIOR COURT OF
ROSAURA SANCHEZ, HECTOR AMADO PENNSYLVANIA
SANCHEZ, ROSA MARIA TAPIA, SEMEN
BABADZHANOV, TATIANA LIAKH,
Appellees
v.
GREYHOUND LINES, INC. AND SABRINA
ANDERSON AND FIRSTGROUP AMERICA
AND C.A.V. ENTERPRISES, LLC, AKOS
GUBICA AND KAROLY GUBICA,
APPEAL OF: GREYHOUND LINES, INC.
AND SABRINA ANDERSON
No. 1879 EDA 2015
Appeal from the Order Entered June 3, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): April Term 2014 No. 140402946
JOSEPH HOANG AND KENNETH IN THE SUPERIOR COURT OF
ROTHWEILER, ESQUIRE, CO- PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
SON THI THANH HOANG, DECEASED,
AND FAITHLEE BROWN, FNU SAIFULLAH,
KEITH PRESSMAN, CHARLES REID,
MICHAEL KETCHPAW, SURAJ
BALAKRISHNAN, AHMED ALJAHMI,
HIREN PATEL, ERIC KJELLSERSTEDT,
GUSTAV FREDERIKSEN, BARBARA
YEAGER-DOYLE, BRANDON OSBORN,
ELORA LENCOSKI, WILLIAM KOOMSON
AND GLORIA KOOMSON, H/W,
Appellees
v.
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GREYHOUND LINES, INC. AND SABRINA
ANDERSON AND FIRSTGROUP AMERICA
C.A.V. ENTERPRISES, INC., AKOS
GUBICA, KAROLY GUBICA,
APPEAL OF: GREYHOUND LINES, INC.
AND SABRINA ANDERSON
No. 1931 EDA 2015
Appeal from the Order Entered June 1, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term, 2013, No. 131202598
JOSEPH HOANG AND KENNETH IN THE SUPERIOR COURT OF
ROTHWEILER, ESQUIRE, CO- PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
SON THI THANH HOANG, DECEASED,
AND FAITHLEE BROWN, FNU SAIFULLAH,
KEITH PRESSMAN, CHARLES REID,
MICHAEL KETCHPAW, SURAJ
BALAKRISHNAN, AHMED ALJAHMI,
HIREN PATEL, ERIC KJELLSERSTEDT,
GUSTAV FREDERIKSEN, BARBARA
YEAGER-DOYLE, BRANDON OSBORN,
ELORA LENCOSKI, WILLIAM KOOMSON
AND GLORIA KOOMSON, H/W,
Appellees
v.
GREYHOUND LINES, INC. AND SABRINA
ANDERSON AND FIRSTGROUP AMERICA
C.A.V. ENTERPRISES, INC., AKOS
GUBICA, KAROLY GUBICA,
APPEAL OF: GREYHOUND LINES, INC.
AND SABRINA ANDERSON
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No. 1932 EDA 2015
Appeal from the Order Entered June 3, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term, 2013, No. 131202598
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
OPINION BY SHOGAN, J.: FILED MAY 24, 2016
The underlying action arises from an October 9, 2013, motor vehicle
accident between a Greyhound Lines, Inc. (“Greyhound”) bus driven by
Sabrina Anderson (“Bus Driver”) and a tractor-trailer. Plaintiffs-Appellees
were passengers on the bus and have alleged injuries as a result of the
accident. The instant appeals are from four pretrial discovery orders in the
underlying consolidated cases. For the reasons that follow, we affirm.
Factual and Procedural History
The complaints allege that Bus Driver was operating a Greyhound bus
westbound on Interstate 80 in Union County, Pennsylvania, on October 9,
2013, traveling from New York City to Cleveland, Ohio. Complaint,
12/19/13, at 5 (“Hoang action”);1 Complaint, 4/25/14, at 3 (“Livingston
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The Hoang estate is the first-named plaintiff in the action filed on
December 19, 2013.
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action”).2 The complaints aver that FirstGroup America (“FirstGroup”) owns,
operates, and/or controls Greyhound (collectively with Bus Driver,
“Appellants”). Complaint, 12/19/13, at 4; Complaint, 4/25/14, at 2. The
bus allegedly rear-ended a tractor-trailer lacking working headlights,
taillights, hazard lights, or reflectors that was operated by additional
defendant Akos Gubica and owned by additional defendants Karoly Gubica or
C.A.V. Enterprises, LLC, or both. Third Party Complaint, 7/2/14, at ¶¶ 7–9.
Forty-two plaintiffs (collectively “Passengers”) filed personal injury actions in
Pennsylvania, New York, Ohio, and Texas against Greyhound. 3 The Hoang
action was filed in the Philadelphia Court of Common Pleas on December 19,
2013. The Livingston action was filed in that court on April 25, 2014. The
cases were consolidated on October 1, 2014.
Greyhound removed the action to the United States District Court for
the Eastern District on January 13, 2014; the district court remanded to the
Philadelphia Court of Common Pleas on June 19, 2014. Passengers sought a
preliminary injunction on July 1, 2014, which the trial court granted on
August 20, 2014. Pursuant to the injunction, all items impounded by the
____________________________________________
2
Manaja Livingston is the first-named plaintiff in the action filed on April 25,
2014.
3
The complaint filed December 19, 2013, also includes a wrongful death
and survival claim brought by the estate of Son Thi Thanh Hoang, who lived
in Vietnam. Complaint, 12/19/13.
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state police were ordered to be released to the parties for inspection. Trial
Court Opinion, 10/30/15, at 1.
On January 8, 2015, Passengers filed a “Third Set of Document
Requests to Defendant FirstGroup America (Regarding claim files and
investigation)” seeking the contents of claim files, correspondence, and
emails discussing the bus accident that were sent to or from any individual
employed by Gallagher Bassett (“Gallagher”), a third-party adjustment
company which contractually handled claims and investigations for
Appellants Greyhound and FirstGroup. On February 19, 2015, Passengers
filed a “Fourth Set of Document Requests for Production of Documents
Addressed to Defendants Greyhound Lines, Inc. and FirstGroup America.”
Appellants objected on the basis that the materials are confidential under
the attorney-client privilege and work-product privilege.
On March 4, 2015, the trial court entered an order granting the
discovery requests, in part. The order provided, in pertinent part, “With
respect to any material objected to on the basis of privilege, a privilege log
shall be provided to all parties and the redacted and unredacted documents
submitted to the court for in camera review within twenty days.” Order,
3/4/15, at 1. The documents, numbering into the thousands, were
submitted. Trial Court Opinion, 10/30/15, at 4.
As a result of that review, the trial court entered three of the four
orders on appeal on April 1, 2015, April 24, 2015, and June 1, 2015. The
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action”).2 The complaints aver that FirstGroup America (“FirstGroup”) owns,
operates, and/or controls Greyhound (collectively with Bus Driver,
“Appellants”). Complaint, 12/19/13, at 4; Complaint, 4/25/14, at 2. The
bus allegedly rear-ended a tractor-trailer lacking working headlights,
taillights, hazard lights, or reflectors that was operated by additional
defendant Akos Gubica and owned by additional defendants Karoly Gubica or
C.A.V. Enterprises, LLC, or both. Third Party Complaint, 7/2/14, at ¶¶ 7–9.
Forty-two plaintiffs (collectively “Passengers”) filed personal injury actions in
Pennsylvania, New York, Ohio, and Texas against Greyhound. 3 The Hoang
action was filed in the Philadelphia Court of Common Pleas on December 19,
2013. The Livingston action was filed in that court on April 25, 2014. The
cases were consolidated on October 1, 2014.
Greyhound removed the action to the United States District Court for
the Eastern District on January 13, 2014; the district court remanded to the
Philadelphia Court of Common Pleas on June 19, 2014. Passengers sought a
preliminary injunction on July 1, 2014, which the trial court granted on
August 20, 2014. Pursuant to the injunction, all items impounded by the
____________________________________________
2
Manaja Livingston is the first-named plaintiff in the action filed on April 25,
2014.
3
The complaint filed December 19, 2013, also includes a wrongful death
and survival claim brought by the estate of Son Thi Thanh Hoang, who lived
in Vietnam. Complaint, 12/19/13.
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2. In the alternative are communications between counsel for
a party and a claims administrator who is investigating the
case on counsel’s behalf, protected by the attorney-client
privilege?
3. Are documents of a claims administrator which contain
mental impressions, conclusions, opinions, memoranda,
notes or summaries, legal research, legal theories or
opinions respecting the value or merit of a claim or
defense or respecting strategy or tactics protected by the
work product privilege?
Greyhound’s Brief at 24.
FirstGroup raises the following issues on appeal:
A. Whether the trial court misapprehended the relationship
between Gallagher Bassett and i[t]s attorneys and
improperly compelled the production of claims notes
containing both verbatim recitations and summaries of
confidential communications made between Galla[g]her
Bassett and its attorneys, in direct contravention of the
protections afforded by 42 Pa.C.S. § 5928.
B. Whether in interpreting the work product privilege, the
trial court improperly refused to protect not only mental
impressions, conclusions or impressions of Galla[g]her
Bassett but also opinions and conclusions relating to the
defense, strategy and tactics of the defense, in
contravention of the protections afforded by Pa.R.C.P.
4003.3, thus amounting to an error of law and/or abuse of
discretion by the trial court.
C. Whether the mock deposition of [Bus Driver], undertaken
by her counsel for the purpose of preparing her for
deposition, is protected by the attorney-client privilege
such that the court order requiring its production amounts
to an error or law and/or abuse of discretion by the trial
court.
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FirstGroup’s Brief at 21–22.4
Jurisdiction
Before examining the merits of this appeal, we address the question of
whether we have jurisdiction to entertain it. As noted, these appeals are
from pretrial discovery orders that have been consolidated. The issues
relate to Appellants’ claims that they must produce materials that are
confidential under the attorney-client privilege and work-product privilege.
The appealed orders are asserted to be collateral orders separate from the
claims in the underlying actions.
While Passengers do not assail this Court’s jurisdiction, Greyhound
maintains these are interlocutory appeals as of right from discovery orders
concerning privilege. Greyhound’s Brief at 28. FirstGroup includes a
Statement of Reasons to Allow an Appeal in its brief, citing Law Office of
Douglas T. Harris v. Phila. Waterfront Partners, LP., 957 A.2d 1223
(Pa. Super. 2007). FirstGroup’s Brief at 28–29. In that case, this Court
discussed the collateral order doctrine and its application to discovery orders
compelling the production of documents, as follows:
____________________________________________
4
FirstGroup flagrantly violates Pa.R.A.P. 2116(a) in its response to each
question it presents. Not only does it quote the court below in violation of
the Rule, it also presents argument concerning the issues. FirstGroup’s Brief
at 21–22.
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2. In the alternative are communications between counsel for
a party and a claims administrator who is investigating the
case on counsel’s behalf, protected by the attorney-client
privilege?
3. Are documents of a claims administrator which contain
mental impressions, conclusions, opinions, memoranda,
notes or summaries, legal research, legal theories or
opinions respecting the value or merit of a claim or
defense or respecting strategy or tactics protected by the
work product privilege?
Greyhound’s Brief at 24.
FirstGroup raises the following issues on appeal:
A. Whether the trial court misapprehended the relationship
between Gallagher Bassett and i[t]s attorneys and
improperly compelled the production of claims notes
containing both verbatim recitations and summaries of
confidential communications made between Galla[g]her
Bassett and its attorneys, in direct contravention of the
protections afforded by 42 Pa.C.S. § 5928.
B. Whether in interpreting the work product privilege, the
trial court improperly refused to protect not only mental
impressions, conclusions or impressions of Galla[g]her
Bassett but also opinions and conclusions relating to the
defense, strategy and tactics of the defense, in
contravention of the protections afforded by Pa.R.C.P.
4003.3, thus amounting to an error of law and/or abuse of
discretion by the trial court.
C. Whether the mock deposition of [Bus Driver], undertaken
by her counsel for the purpose of preparing her for
deposition, is protected by the attorney-client privilege
such that the court order requiring its production amounts
to an error or law and/or abuse of discretion by the trial
court.
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FirstGroup’s Brief at 21–22.4
Jurisdiction
Before examining the merits of this appeal, we address the question of
whether we have jurisdiction to entertain it. As noted, these appeals are
from pretrial discovery orders that have been consolidated. The issues
relate to Appellants’ claims that they must produce materials that are
confidential under the attorney-client privilege and work-product privilege.
The appealed orders are asserted to be collateral orders separate from the
claims in the underlying actions.
While Passengers do not assail this Court’s jurisdiction, Greyhound
maintains these are interlocutory appeals as of right from discovery orders
concerning privilege. Greyhound’s Brief at 28. FirstGroup includes a
Statement of Reasons to Allow an Appeal in its brief, citing Law Office of
Douglas T. Harris v. Phila. Waterfront Partners, LP., 957 A.2d 1223
(Pa. Super. 2007). FirstGroup’s Brief at 28–29. In that case, this Court
discussed the collateral order doctrine and its application to discovery orders
compelling the production of documents, as follows:
____________________________________________
4
FirstGroup flagrantly violates Pa.R.A.P. 2116(a) in its response to each
question it presents. Not only does it quote the court below in violation of
the Rule, it also presents argument concerning the issues. FirstGroup’s Brief
at 21–22.
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appealable under Pa.R.A.P. 313.’); see also Williams, 86 A.3d at 780 (‘This
Court has moved towards a category-wide exception to discovery orders that
are alleged to violate a protected privilege, such as the attorney-client
privilege or the work product doctrine.’).”
We agree with FirstGroup that the attorney-client and work-product
privileges implicate rights rooted in public policy concerns and that the
claims will be irreparably lost if review is postponed. Thus, having decided
that 1) the discovery orders are separable from, and collateral to, the main
causes of action; 2) the right involved is too important to be denied review;
and 3) the question presented is such that if review is postponed until after
final judgment, the claim will be irreparably lost; we conclude we have
jurisdiction of the appeals. Custom Designs & Mfg. Co. v. Sherwin-
Williams Co., 39 A.3d 372, 375–376 (Pa. Super. 2012) (orders overruling
claims of privilege and requiring disclosure are immediately appealable;
orders granting discovery in the face of colorable claims of attorney-client
privilege are appealable under the collateral order doctrine); see also Flor,
__ A.3d at __, 2016 WL 1627524 at *4 (“To limit the scope of collateral
review, mindful that our precedent cautions against permitting the collateral
order doctrine to become an exception that swallows the rule, we require the
three-prong collateral order test to be met for each individual issue that an
appellate court reviews upon collateral appeal. Rae [v. Pennsylvania
Funeral Directors Ass’n, 977 A.2d 1121, 1130 (Pa. 2009)] (holding that
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‘the collateral order rule’s three-pronged test must be applied independently
to each distinct legal issue over which an appellate court is asked to assert
jurisdiction pursuant to Rule 313’).”
Standard of Review
“Whether the attorney-client privilege or the work product doctrine
protects a communication from disclosure is a question of law.” In re
Thirty–Third Statewide Investigating Grand Jury, 86 A.3d 204, 215
(Pa. 2014). Indeed, the attorney-client privilege is now embodied in a
statute. See 42 Pa.C.S. § 5928 (“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.”).
Where “the issue is the proper interpretation of a statute, it poses a question
of law,” as well. Phoenixville Hosp. v. Workers’ Compensation Appeal
Board, 81 A.3d 830, 838 (Pa. 2013). Thus, the standard of review is de
novo, and the scope of review is plenary. Flor, __ A.3d at __, 2016 WL
1627524 at *3; Yocabet, 119 A.3d at 1019.
Attorney-Client Privilege and Work-Product Doctrine
“It is beyond peradventure that Pennsylvania law protects the
attorney-client privilege and recognizes it as ‘the most revered of the
common law privileges.’” Flor, __ A.3d at __, 2016 WL 1627524 at *6. In
an appeal selected to determine the appropriate scope of the attorney-client
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privilege in Pennsylvania, our Supreme Court noted that the attorney-client
privilege derives from the common law but is also codified at 42 Pa.C.S.
§ 5928. Gillard v. AIG Ins. Co., 15 A.3d 44, 50 (Pa. 2011); Yocabet, 119
A.3d at 1027. Acknowledging the prior inconsistent approaches taken by
Pennsylvania courts, the Gillard majority opined that the disharmony
presumably related “to the ongoing tension between the two strong,
competing interests-of-justice factors in play—namely—the encouragement
of trust and candid communication between lawyers and their clients, and
the accessibility of material evidence to further the truth-determining
process.” Gillard, 15 A.3d at 56–57 (internal citation omitted).
More recently, in Yocabet, this Court stated:
“The attorney-client privilege is intended to foster candid
communications between counsel and client, so that counsel
may provide legal advice based upon the most complete
information from the client.” [Thirty–Third Statewide
Investigating Grand Jury, 86 A.3d at 216]. Since the purpose
of the attorney-client privilege “is to create an atmosphere that
will encourage confidence and dialogue between attorney and
client, the privilege is founded upon a policy extrinsic to the
protection of the fact-finding process.” Id. at 216–17. The
actual beneficiary of this policy is not only the client but also the
justice system, which “depends on frank and open client-
attorney communication.” Id. at 217.
For a party to invoke the privilege, the following elements
must be established:
1) The asserted holder of the privilege is or sought to
become a client.
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2) The person to whom the communication was
made 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
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.
Red Vision Systems, Inc. [v. National Real Estate
Information Services, L.P., 108 A.3d 54, 62–63 (Pa. Super.
2015)] (citation omitted). Additionally, when “the client is a
corporation, the privilege extends to communications between
its attorney and agents or employees authorized to act on the
corporation’s behalf.” Id. at 60 (citation omitted).
Yocabet, 119 A.3d at 1027.
An attorney’s work product is also protected from compelled disclosure
by Pennsylvania law. “This protection promotes our adversarial system ‘by
enabling attorneys to prepare cases without fear that their work product will
be used against their clients.’ Indeed, we have characterized the work
product doctrine as ‘one of the most fundamental tenets of our system of
jurisprudence.’” Flor, __ A.3d at __, 2016 WL 1627524 at *6 (internal
citatios omitted). The Flor Court recently described the work-product
doctrine as follows:
The work product doctrine, which the U.S. Supreme Court
has described as a “qualified privilege for certain materials
prepared by an attorney ‘acting for his client in anticipation of
litigation,’” see Commonwealth v. Williams, 86 A.3d 771, 782
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n.6 (Pa. 2014) (quoting United States v. Nobles, 422 U.S.
225, 237-38 (1975)), exempts from discovery certain types of
documents. See Pa.R.Crim.P. 573(G) (defining the work product
doctrine as barring disclosure “of legal research or of records,
correspondence, reports, or memoranda to the extent that they
contain the opinions, theories, or conclusions of the attorney . . .
or members of their legal staffs”).
Flor, __ A.3d at __ n.6, 2016 WL 1627524 at * n.6.
Pennsylvania Rules of Civil Procedure also provide as follows:
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 . . . 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.
Greyhound’s Appeal
Greyhound’s first issue asserts that “communications between counsel
for a party and the party’s claims administrator, which hired counsel, [are]
protected by the attorney-client privilege.” Greyhound’s Brief at 24. Review
of Greyhound’s brief reveals that Greyhound makes no argument on this
issue; it merely recites excerpts from cases that describe the attorney-client
privilege. We consider this issue abandoned, as Greyhound advances no
argument for this Court to address. Banfield v. Cortes, 110 A.3d 155, 168
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n.11 (Pa. 2015) (“Where an appellate brief . . . fails to develop the issue in
any . . . meaningful fashion capable of review, that claim is waived. It is not
the obligation of an appellate court to formulate an appellant’s arguments
for him.”) (citing Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014)).
To the extent we might find a particularized argument by Greyhound
assailing the trial court’s reliance on Pa.R.C.P. 4003.4 in ordering production
of the “practice” deposition of Bus Driver, we note the following.
The issue concerning Bus Driver’s videotaped statement arose during a
discovery hearing on May 26, 2015. The following exchange occurred:
THE COURT: Now, Rule 4003.4, upon written request
a party is entitled to immediate receipt of a statement
concerning the action or its subject matter previously made by
that party, any other party or a witness. A statement previously
made is a written statement signed or otherwise adopted or
approved by the person making it or a stenographic or other
recording which is a substantially verbatim recital of an oral
statement made by the person making it and
contemporaneously recorded.
In reviewing the document, it’s appeared that there was
such a document from [Bus Driver] created at the request of
counsel and that was not submitted for in-camera review.
Has that been turned over?
[COUNSEL FOR GREYHOUND]: It has not been turned
over, Your Honor.
THE COURT: On what possible basis has that not been
turned over nor turned over to the Court for in-camera review?
[COUNSEL FOR GREYHOUND]: Your Honor, the
recording was created through counsel interviewing [Bus Driver],
that it was not a document that was created or maintained or
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kept by Gallagher Bassett, and the documents that were turned
over to the [c]ourt pursuant to the [c]ourt’s order were the
documents that were in the possession of Gallagher Bassett.
This recording was—it is a recording of a conversation or
questions posed to [Bus Driver] and her responses.
THE COURT: It was also sent to either Gallagher
Bassett or Greyhound, wasn’t it?
[COUNSEL FOR GREYHOUND]: Your Honor, I do not
believe that was.
THE COURT: That’s the only way I learned of it was
that it was referenced as being sent.
[COUNSEL FOR GREYHOUND]: It was referenced that
it would be sent. My understanding, Your Honor, is that it was
never sent. But that’s—
THE COURT: On what basis—that’s irrelevant. On
what basis has that not been turned over when I am sure
counsel has asked, plaintiffs’ counsel, has asked for statements?
[COUNSEL FOR GREYHOUND]: Attorney client
privilege, Your Honor.
THE COURT: Then on what basis was it not submitted
to the [c]ourt as part of your supposed complete privilege log?
[COUNSEL FOR GREYHOUND]: The privilege log was
created as to documents that were maintained by Gallagher
Bassett. In full disclosure to the [c]ourt, Your Honor, I only
received a copy of that recording within the last few weeks after
your April 1st order.
THE COURT: Is it a reproduction of a statement
concerning the action or its subject matter previously made by
[Bus Driver]?
[COUNSEL FOR GREYHOUND]: It is a recording, yes,
Your Honor.
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THE COURT: Is it a substantially verbatim recital of an
oral statement by the person making it and contemporaneously
recorded?
[COUNSEL FOR GREYHOUND]: It is a recording, Your
Honor, yes.
THE COURT: It is my understanding from reading
what was provided and claimed privilege that it is a deposition
preparation that was recorded as [Bus Driver] was being
prepared for her deposition in some other case. Right?
[COUNSEL FOR GREYHOUND]: Correct, Your Honor.
THE COURT: You are claiming this is protected by
attorney-client privilege?
[COUNSEL FOR GREYHOUND]: We are, Your Honor.
THE COURT: You are ordered to turn it over within
five days. Today is Monday. By Friday at 5 o’clock.
So that the record is clear, knowing that such a
reproduction of a statement concerning the action or its subject
matter made by the driver which is substantially a verbatim
recital of an oral statement by the person making it and
contemporaneously recorded as set forth in Rule 4003.4,
knowing that, are you asking for it?
[COUNSEL FOR PASSENGERS]: Yes, Your Honor.
THE COURT: Friday at 5:00, please.
N.T., 5/26/15, at 13–17.
In its opinion explaining its order directing Greyhound to produce the
statement, the trial court relied upon Pa.R.C.P. 4003.4, which provides, in
pertinent part as follows:
Rule 4003.4. Scope of Discovery. Trial Preparation Material.
Statements
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Upon written request, a party is entitled to immediate receipt of
a photostatic copy or like reproduction of a statement concerning
the action or its subject matter previously made by that party,
any other party or a witness. Upon written request, a person
not a party is entitled to immediate receipt of a photostatic copy
or like reproduction of a statement concerning the action or its
subject matter previously made by that person. If the statement
is not so provided, the party or person may move for a court
order. For purposes of this rule, a statement previously made is
* * *
(2) a stenographic, mechanical, electrical or other recording, or
a transcription thereof, which is a substantially verbatim recital
of an oral statement by the person making it and
contemporaneously recorded.
EXPLANATORY COMMENT--1978
* * *
The Rule covers all forms of statements, including
signed statements, recordings and transcriptions.
Pa.R.C.P. 4003.4, cmt. 1978; Trial Court Opinion 10/6/15, at 2. Greyhound
avers that the trial court erred in ignoring Pa.R.C.P. 4003.1 “Scope of
Discovery Generally. Opinions and Contentions,” which provides, in pertinent
part, that subject to Rules 4003.2 to 4003.5, “a party may obtain
discovery regarding any matter, not privileged, which is relevant” to
the pending action. Id. (emphasis added). Greyhound’s Brief at 32–33.
The trial court noted that it was unclear with whom the videotape was
shared. Trial Court Opinion, 10/6/15, at 1–2. “It is however clear that a
court reporter and videographer were present during the taking of the
statement” of Bus Driver. Id. at 2. The trial court concluded that “a
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n.11 (Pa. 2015) (“Where an appellate brief . . . fails to develop the issue in
any . . . meaningful fashion capable of review, that claim is waived. It is not
the obligation of an appellate court to formulate an appellant’s arguments
for him.”) (citing Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014)).
To the extent we might find a particularized argument by Greyhound
assailing the trial court’s reliance on Pa.R.C.P. 4003.4 in ordering production
of the “practice” deposition of Bus Driver, we note the following.
The issue concerning Bus Driver’s videotaped statement arose during a
discovery hearing on May 26, 2015. The following exchange occurred:
THE COURT: Now, Rule 4003.4, upon written request
a party is entitled to immediate receipt of a statement
concerning the action or its subject matter previously made by
that party, any other party or a witness. A statement previously
made is a written statement signed or otherwise adopted or
approved by the person making it or a stenographic or other
recording which is a substantially verbatim recital of an oral
statement made by the person making it and
contemporaneously recorded.
In reviewing the document, it’s appeared that there was
such a document from [Bus Driver] created at the request of
counsel and that was not submitted for in-camera review.
Has that been turned over?
[COUNSEL FOR GREYHOUND]: It has not been turned
over, Your Honor.
THE COURT: On what possible basis has that not been
turned over nor turned over to the Court for in-camera review?
[COUNSEL FOR GREYHOUND]: Your Honor, the
recording was created through counsel interviewing [Bus Driver],
that it was not a document that was created or maintained or
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kept by Gallagher Bassett, and the documents that were turned
over to the [c]ourt pursuant to the [c]ourt’s order were the
documents that were in the possession of Gallagher Bassett.
This recording was—it is a recording of a conversation or
questions posed to [Bus Driver] and her responses.
THE COURT: It was also sent to either Gallagher
Bassett or Greyhound, wasn’t it?
[COUNSEL FOR GREYHOUND]: Your Honor, I do not
believe that was.
THE COURT: That’s the only way I learned of it was
that it was referenced as being sent.
[COUNSEL FOR GREYHOUND]: It was referenced that
it would be sent. My understanding, Your Honor, is that it was
never sent. But that’s—
THE COURT: On what basis—that’s irrelevant. On
what basis has that not been turned over when I am sure
counsel has asked, plaintiffs’ counsel, has asked for statements?
[COUNSEL FOR GREYHOUND]: Attorney client
privilege, Your Honor.
THE COURT: Then on what basis was it not submitted
to the [c]ourt as part of your supposed complete privilege log?
[COUNSEL FOR GREYHOUND]: The privilege log was
created as to documents that were maintained by Gallagher
Bassett. In full disclosure to the [c]ourt, Your Honor, I only
received a copy of that recording within the last few weeks after
your April 1st order.
THE COURT: Is it a reproduction of a statement
concerning the action or its subject matter previously made by
[Bus Driver]?
[COUNSEL FOR GREYHOUND]: It is a recording, yes,
Your Honor.
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THE COURT: Is it a substantially verbatim recital of an
oral statement by the person making it and contemporaneously
recorded?
[COUNSEL FOR GREYHOUND]: It is a recording, Your
Honor, yes.
THE COURT: It is my understanding from reading
what was provided and claimed privilege that it is a deposition
preparation that was recorded as [Bus Driver] was being
prepared for her deposition in some other case. Right?
[COUNSEL FOR GREYHOUND]: Correct, Your Honor.
THE COURT: You are claiming this is protected by
attorney-client privilege?
[COUNSEL FOR GREYHOUND]: We are, Your Honor.
THE COURT: You are ordered to turn it over within
five days. Today is Monday. By Friday at 5 o’clock.
So that the record is clear, knowing that such a
reproduction of a statement concerning the action or its subject
matter made by the driver which is substantially a verbatim
recital of an oral statement by the person making it and
contemporaneously recorded as set forth in Rule 4003.4,
knowing that, are you asking for it?
[COUNSEL FOR PASSENGERS]: Yes, Your Honor.
THE COURT: Friday at 5:00, please.
N.T., 5/26/15, at 13–17.
In its opinion explaining its order directing Greyhound to produce the
statement, the trial court relied upon Pa.R.C.P. 4003.4, which provides, in
pertinent part as follows:
Rule 4003.4. Scope of Discovery. Trial Preparation Material.
Statements
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Upon written request, a party is entitled to immediate receipt of
a photostatic copy or like reproduction of a statement concerning
the action or its subject matter previously made by that party,
any other party or a witness. Upon written request, a person
not a party is entitled to immediate receipt of a photostatic copy
or like reproduction of a statement concerning the action or its
subject matter previously made by that person. If the statement
is not so provided, the party or person may move for a court
order. For purposes of this rule, a statement previously made is
* * *
(2) a stenographic, mechanical, electrical or other recording, or
a transcription thereof, which is a substantially verbatim recital
of an oral statement by the person making it and
contemporaneously recorded.
EXPLANATORY COMMENT--1978
* * *
The Rule covers all forms of statements, including
signed statements, recordings and transcriptions.
Pa.R.C.P. 4003.4, cmt. 1978; Trial Court Opinion 10/6/15, at 2. Greyhound
avers that the trial court erred in ignoring Pa.R.C.P. 4003.1 “Scope of
Discovery Generally. Opinions and Contentions,” which provides, in pertinent
part, that subject to Rules 4003.2 to 4003.5, “a party may obtain
discovery regarding any matter, not privileged, which is relevant” to
the pending action. Id. (emphasis added). Greyhound’s Brief at 32–33.
The trial court noted that it was unclear with whom the videotape was
shared. Trial Court Opinion, 10/6/15, at 1–2. “It is however clear that a
court reporter and videographer were present during the taking of the
statement” of Bus Driver. Id. at 2. The trial court concluded that “a
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recorded statement, videoed by a third party, transcribed by a Court
Reporter is clearly within [the definition of a] discoverable statement
identified by Rule 4003.4.” Id. at 3 (footnote omitted).
Passengers maintain that Bus Driver’s videotaped statement is akin to
Appellants taking a statement at the scene. Passengers’ Brief at 12. They
assert that Appellants do not dispute the proposition that the videotaped
statement is a “statement.” Id. at 27. The mock deposition was conducted
so that Bus Driver’s counsel would know what Bus Driver would say at her
deposition. As Passengers note, the entire exercise “was to elicit information
that was intended to be disclosed to other parties.” Passengers’ Brief at 28.
Passengers posit that the information conveyed by Bus Driver “was never
intended to be confidential.” Id. at 28. We agree.
Greyhound, as the party asserting attorney-client privilege, “bears the
initial burden of producing sufficient facts to show that it has properly
invoked the privilege for the communications that it has declined to
disclose.” Custom Designs, 39 A.3d at 379. As noted by the trial court, it
is “clear that a court reporter and videographer were present during the
taking of the statement . . . .” Trial Court Opinion, 10/6/15, at 2. Thus, as
Passengers urge, and in the absence of an affidavit, statement, or testimony
in support of the circumstances, Greyhound has not demonstrated that Bus
Driver had a reasonable expectation that the videotaped statement would
remain confidential. Passengers’ Brief at 30–31. See Custom Designs, 39
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A.3d at 379 (failure to present affidavit, statement, or testimony to clarify
circumstances under which communication was made supports conclusion
that party asserting attorney-client privilege failed to sustain its initial
burden of proof). Therefore, even if we could find sufficient particularity in
Greyhound’s brief regarding this issue to avoid waiver, we would conclude
that it failed to sustain its burden of proof regarding the assertion of
privilege as to the mock deposition tape.5
In its second issue, Greyhound purports to raise the issue of whether
the communications between its counsel and Gallagher, a claims
administrator investigating the case on counsel’s behalf, are protected by
the attorney-client privilege. Beyond reference to purported relevant case
law, Greyhound’s entire argument avers that Bus Driver’s practice deposition
“is protected by the attorney-client privilege, as is any document in the
materials under seal which report a communication between Kane Pugh,6
any other attorney for Greyhound, and Gallagher Bassett.” Greyhound’s
Brief at 38. It cites a number of cases, merely setting forth a holding,
without any explanation as to how the case is relevant or controlling to the
instant case. There is no analysis of relevant cases. Greyhound does not
____________________________________________
5
We further note that the videotape is not in the voluminous record
certified to this Court.
6
Kane, Pugh, Knoell, Troy & Kramer, LLP, is the law firm representing
Greyhound and Bus Driver.
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assail the reasoning of the trial court. Once again, there is no argument to
address, and we find the issue waived. Banfield v. Cortes, 110 A.3d at
168 n.11; In re Estate of Schumacher, 133 A.3d 45 (Pa. Super. 2016)
(failure to develop argument in brief waives issue).
Finally, Greyhound purports to raise the issue of whether documents of
a claims administrator which contain “mental impressions, conclusions,
opinions, memoranda, notes or summaries, legal research, legal theories or
opinions respecting the value or merit of a claim or defense or respecting
strategy or tactics” are protected by the work-product privilege.
Greyhound’s Brief at 38. Once again, the brief fails to make any
particularized argument and merely asserts general principals relating to the
attorney-client privilege and the protections afforded to mental impressions
under Pa.R.C.P. 4003. Greyhound posits that it “incorporate[s] by reference
the arguments made in the brief of FirstGroup America.” Greyhound’s Brief
at 40. To the extent Greyhound attempted to raise a third issue in its brief,
we find the claim waived. Banfield, 110 A.3d at 168 n.11.
FirstGroup’s Appeal
Because issues A and B are intertwined, we address them together.
FirstGroup argues that the trial court failed to “appropriately” apply the
attorney-client and work-product privileges. FirstGroup’s Brief at 30, 36.
Moreover, it maintains that contrary to the trial court’s opinion, Appellants
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did not misconstrue the privileges afforded by 42 Pa.C.S. § 5928 or
Pa.R.C.P. 4003.3. Id. at 26.
FirstGroup contends that many of the “investigative materials” that the
trial court ordered Appellants to produce were, in fact, verbatim recitations
and/or summaries of confidential communications from defense counsel to
Gallagher that were protected by the attorney-client privilege. Thus, it
avers, the production of these confidential communications was an abuse of
discretion by the trial court. FirstGroup’s Brief at 30. FirstGroup asserts
that confidential communications between counsel and Gallagher should
have been afforded the protection of the attorney-client privilege because
unlike an insurance company, Gallagher “is in a unique position and serves
as a direct arm of Greyhound.” Id. at 32. FirstGroup suggests that because
Greyhound is self-insured and directs its own litigation defense, “risk
management functions have been contractually outsourced to [Gallagher],
which at all times acts on behalf of [Greyhound].” Id. Thus, FirstGroup
contends that because Gallagher was defense counsel’s “client
representative,” information relayed between Gallagher and “its retained
defense counsel is subject to the same protections as it would be if that
information had been provided directly to [Greyhound].” Id. at 32–33. It
cites no case in support of this contention. Id.
FirstGroup also challenges disclosure of documents on the basis of the
work-product doctrine, which is “closely related to the attorney-client
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privilege” but, according to Appellants, “is broader because it protects any
material, regardless of whether it is confidential, prepared by the attorney in
anticipation of litigation.” FirstGroup’s Brief at 36 (citing Rhodes v. USAA
Cas. Ins. Co., 21 A.3d 1253, 1259–1260 (Pa. Super. 2011)). The doctrine,
first set forth by the United States Supreme Court in Hickman v. Taylor,
329 U.S. 495 (1947), has been adopted by all states, including
Pennsylvania. FirstGroup’s Brief at 37 (citing National Railroad
Passenger Corp. v. Fowler, 788 A.2d 1053, 1065–1066 (Pa. Cmwlth.
2001)).
FirstGroup contends the trial court erred when it ordered the
production of information protected by the work-product doctrine,
maintaining that although the materials at issue may at first blush appear
merely to be a recitation of investigative efforts of Gallagher, “upon closer
inspection it is clear that these documents contain the mental impressions
and/or legal theories that Gallagher Bassett intends to utilize in defending
against claims made by those injured in the October 9, 2013 bus accident.”
FirstGroup’s Brief at 38–39. FirstGroup, however, never explains this
conclusion—and fails to apprise this Court why or how the documents
contain mental impressions.
The trial court initially explained its conclusion regarding Appellants’
assertion of privilege as follows:
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[Appellants] have unreasonably and improperly claimed
attorney-client and mental impression privilege of non-attorney
representatives to thwart proper discovery. [Appellants] have
interpreted the Pa.R.C.P. 4003.3 mental impression privileges to
improperly include anything, including original investigation and
statements, written by an adjuster. [Appellants] have
improperly interpreted the attorney-client privilege to include
anything in which an attorney was involved. [Appellants] have
interpreted Pa.R.C.P. 4003.3 mental impression privilege to
improperly claim privilege upon investigative materials and to
resist depositions of defendant personnel and investigative
adjusters having distinct and relevant discoverable information.
[Appellants] have interpreted the attorney client privilege to
improperly include anything, including original investigative
material reported to claims and other representatives of
defendant Greyhound. Effectively, [Appellants] claim anything
contained in the file of Gallagher Bassett, their third party
administrator charged with investigating claims is privileged.
[Appellant] Greyhound claims that there is no accident
investigation file. Greyhound claims that although they run
thousands of buses across America, they have no system to
investigate accidents to determine their cause. Alternatively,
Greyhound claims that if there is any claim anticipated,
Greyhound has no system to determine cause except that
protected from any disclosure. This facial claim of privilege is
unambiguously disingenuous.
Order, 4/1/15, at 1–2.
The trial court “individually reviewed hundreds of documents upon
which a claim of Attorney-client or mental impression privilege” was
asserted, and it submitted as follows:
Repeatedly recorded in the documents are a description of
the location of the bus and statements from passengers. Also
documents which are clearly discoverable certain descriptions of
injuries of plaintiffs and the procedural litigation status of other
cases. Many other document[s] had descriptions and locations
of the “Drivecam unit” which records bus movement and the
recovery of log data by “LYTX.” Among the documents ordered
produced are comments concerning the location of the bus,
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movement of the bus and one note that the “bus will be
destroyed.” [Appellants] claim[] privilege for an investigation
into [Bus Driver’s] phone records and activity on the day of the
accident. There is also a description of [Bus Driver’s]
explanation as to the accident and her medical records.
Other documents ordered produced on which [Appellants]
claim[] privilege include:
Identification of potential witnesses.
Identification of “several videos produced with the
full Pa State Police Report.”
E-mail from Timothy Ryan First Group to others in
First Group transmitting police report, identify Tim
Ryan “lead claim adjuster Gallagher Bassett
Services, Inc./Greyhound Lines, Inc.” and
transmitting from Justin Bayer to various individuals
including Charles Patitucci at AIG.com. Copy of the
police report and “six other disks with photos and
video recordings.”
Letter to Gallagher Bassett Services from CIA
Custard Insurance Adjusters containing 164
photographs, a digitally recorded claimant driver
statement and a claimant driver statement
transcription.
Identification of individuals who interviewed [Bus
Driver] including Jimmy Lytle, a regional safety
manager, with union representative present.
Preservation of evidence notices including one to a
“refurb company.”
The location, transportation and possible destruction
of the bus involved in the accident.
Description of location and movement of bus,
telephone log of driver and voicemail, pre-trip
description of bus and failed inspection. Description
of location of bus and phone and pre-trip activity.
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Efforts to move the bus and summary of testimony
at criminal trial.
Description of intention to release the bus.
Statements from passengers on the bus.
Status of Ohio plaintiff cases and the criminal case
against Mr. Gubica the driver of the truck which was
rear-ended.
Description of testimony in the criminal case.
Identification, location and recovery of data from the
"Drivecam unit" or "SD Card" and affidavits
concerning these data units. Statement that the
damaged drivecam is "in process of repair."
Information that “Drivecam and SD Card” are being
held by the police. An affidavit claiming that the
system was not operating properly.
Description of removal of BDEC ECM data as testified
to in trial and description of other trooper testimony.
Identification that DDEC and CADEC information has
been downloaded by the lead criminal investigation
investigator.
Identification of and attachment of ORDS (operations
report distribution system) bus track report and NYD
dispatch register.
Letter to Corporal Schmidt of the Pennsylvania State
Police from Patrick J. Shipley re: lytx evaluation and
use of memory chip and Drivecam video event
recorded.
Letter from Joseph Mordino identifying possible
locations of data from CADEC and computer
backups.
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Witness statements including recorded statements.
Identification of interview by State Police with [Bus
Driver]. Transcribed recording of statement by
passengers on the bus.
The results of Investigation into [Bus Driver’s] phone
records, logs, and activity on the day of the accident.
Description of statement of [Bus Driver].
Statements attributed to “jail cell roommate” of Mr.
Gubica’s vehicle which was struck in the rear by the
bus. This jail house “roommate” claimed there were
admissions from the driver.
Identification of a written witness statement to the
police.
Description of information obtained including a direct
conversation with the police investigator. A report
that on December 31, 2013 the police report was
received which did not appear to be a complete
report. Description of State Troopers[’] investigation
including traffic citations for Mr. Gubica and the
search warrant.
Description of an inspection of the bus performed on
December 20, 2013.
Statement made by [Bus Driver’s] treating physician
to investigator.
Description of criminal trial testimony.
Description of State Trooper investigation including
traffic citation.
Criminal case disposition.
Activities of . . . Mr. Gubica subsequent to the
accident.
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Description of conversation with Lee Harris, M.D.
neurologist.
State Police information concerning the rear-ended
truck.
Identification that State Troopers secured the log
book. Identification of a video of a defendant driver
statements.
Identification of deposition of additional plaintiff.
Scheduling of a deposition.
Copy of a publicly available newspaper article of
March 7, 2O14. Copies of other publicly available
news articles are claimed to be privileged.
E-mail from Tim Ryan identified as “senior claims
adjuster Greyhound Lines, Inc./Gallagher Bassett
Services, Inc.” to other individual of Greyhound and
[FirstGroup] including counsel Paul C. Troy.
[E]-mail from Ryan Timothy of First Group identified
as senior claims adjustor Greyhound Lines,
Inc./Gallagher Bassett Services, Inc. to numerous
individuals concerning log.
Identification of adjuster Chandra Diven’s report and
enclosures.
E-mail from Dex Kemp at Greyhound to James Dixon
at Greyhound. Identification of available data re:
accident analysis.
E-mail from Christopher Preski at [FirstGroup] to
Timothy Ryan at [FirstGroup] and James Dixon at
Greyhound re: right hub leaking and maintenance
thereto.
E-mail from Christopher Preski [FirstGroup] to First
Group and Greyhound re: inspection report.
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E-mail concerning “conversations from the field on
this accident.”
E-mail from Kirk DeBees [FirstGroup] to Greyhound
re: medical records.
Summary of facts and investigation from Hill
Adjustment Bureau, Inc., to National Union First
Insurance re: Greyhound Lines, Inc. insured.
From Gallagher Bassett claims services to “all
personnel on distribution list.” Investigation into
accident including identification of witnesses.
Also submitted to the court for in camera
review was a copied portion of deposition
testimony which was not on any privilege log.[7]
Voided check.
Copy of outside of envelope.
Invoice from Spill Response, Inc.
Copy of Interrogatories in other cases.
Description of collection of “trip envelope” . . . which
had been strewn around the collision site” and the
identity of Eric Jenkins of Greyhound management
who “may” have gathered some of this material from
the scene.
Description of a conversation with [Bus Driver’s]
doctor and a description of criminal trial testimony.
Description of State Troopers investigation including
traffic citations for a semi driver.
____________________________________________
7
This reference by the trial court is to the “practice” deposition of Bus
Driver that is the subject of FirstGroup’s third issue, discussed infra.
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Conversations with [Bus driver’s] doctor including
Dr. Scott opinions and cardiologist in Ohio
description.
Numerous documents of Milton Fire Dept. statement
of invoices for extraction.
Investigation reports.
Collison report.
Crawford and company preliminary scene report.
Recorded statement.
E-mail re: grievance and disciplinary possibilities for
defendant driver.
E-mail concerning arbitration decision ordering
reinstatement of [Bus Driver].
Deposition summary.
Identity of supervisors and hierarchy reporting chart.
Investigation report update on Ohio case.
Deposition of David Amadon (the privilege objection
to all impressions of the deponent were sustained).
Updated report on other lawsuits and investigation.
E-mail from Ernestine McMillin to Joe Mordino, James
Dixon re: “forward FWD: [Bus Driver]–depositions in
New York” identity of potential witnesses.
History of [Bus Driver’s] driving record.
Description of medical records.
E-mail to Greyhound and First Group concerning
video which was created of the route taken by the
bus and inspection.
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From Joe Hall to James Dixon subject [Bus Driver]
10/9/13 two conversations description of immediate
conversations concerning the accident.
Activity from last report including statements by
[Bus Driver].
In deciding what was actually privileged among the morass
of documents upon which privilege was claimed the [c]ourt
meticulously avoided any attorney client material or any product
which truly was the work product of an attorney. Additionally,
where the material represented the work of party’s
representative the [c]ourt remained aware of the limitations [of]
Pa.R.Civ.P. Rule 4003.3. Unlike under the Federal rules: “a
party may obtain discovery of any matter discoverable . . . 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 . . . .” However, even when certain
parts of a document were ordered produced the [c]ourt
intentionally excluded any 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.” When a document was authored by a claims
representative or investigator other than a party’s attorney the
ordered documents did not include any disclosure of “mental
impressions, conclusions, or opinions respecting the value or
merit of a claim or defense or respecting strategy or tactics.”5
5
Pa.R.Civ.Pro. Civ. P. [sic] 4003.3.
Trial Court Opinion, 10/30/15, at 6–12 (emphasis added; footnote omitted).
We conclude that Appellants failed to carry their burden of proof.
Appellants have failed to make any specific argument beyond citing general
precepts governing the attorney-client and work-product privileges. Rather
than review the trial court’s decision “document by document,” Appellants
merely allege that the trial court erred in its ruling of the thousands of
documents submitted for in camera review, en masse. Indeed, Appellants
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