Brown, F. v. Greyhound Lines, Inc.
142 A.3d 1
Pa. Super. Ct.2016Background
- October 9, 2013: Greyhound bus driven by Sabrina Anderson rear-ended a tractor-trailer; multiple passengers (Passengers) sued Greyhound, the driver, and related entities for personal injuries and wrongful death. Cases were consolidated in Philadelphia Court of Common Pleas.
- Greyhound/FirstGroup (Appellants) used Gallagher Bassett as a claims administrator; thousands of investigative documents and communications were generated and turned over to the court for in-camera review after Passengers served discovery requests seeking claim files and related materials.
- Appellants asserted attorney‑client and work‑product privileges over many documents and refused to produce a videotaped "mock" (practice) deposition of the bus driver; trial court ordered production in part and directed submission of a privilege log and documents for in‑camera review.
- Trial court reviewed hundreds/thousands of documents, ordered production of many categories of investigative materials (while excluding attorney mental impressions/opinions), and specifically ordered production of the videotaped mock deposition under Pa.R.C.P. 4003.4.
- Appellants appealed multiple pretrial discovery orders claiming privileges; Superior Court considered jurisdiction under the collateral‑order doctrine and retained jurisdiction to review privilege rulings immediately.
- Superior Court affirmed the trial court: Appellants failed to sustain privilege burdens; broad claims that Gallagher’s entire file was privileged were rejected; the mock deposition was discoverable under Rule 4003.4.
Issues
| Issue | Passengers' Argument | Appellants' Argument | Held |
|---|---|---|---|
| Whether communications between counsel and the party’s claims administrator (Gallagher) are protected by attorney‑client privilege | Documents are discoverable; privilege not established | Gallagher acts as Greyhound’s agent/client representative; communications with counsel are privileged | Appellants failed to carry burden; blanket claims denied; trial court’s production order affirmed |
| Whether communications between counsel and a claims admin investigating on counsel’s behalf are privileged | Discoverable; investigatory materials not shielded as attorney‑client | Communications reflect attorney‑client communications when claims admin acts as client representative | No adequate showing of privilege; privilege claim waived or unsupported; production affirmed |
| Whether claims administrator documents containing impressions, notes, opinions, strategy are protected by work‑product doctrine | Many investigatory materials are discoverable; mental impressions must be excluded but sheer investigative facts are not privileged | Work‑product protects mental impressions, strategy and conclusions in Gallagher files | Trial court excluded attorney mental impressions but ordered factual/investigative materials produced; Superior Court affirmed (Appellants didn’t identify specific documents to overturn rulings) |
| Whether the videotaped "mock" deposition of the bus driver is protected from production | Should be privileged as attorney‑client/deposition preparation | Tape is a substantially verbatim recorded statement created during counsel’s preparation and thus privileged | Tape held discoverable under Pa.R.C.P. 4003.4 (substantially verbatim recorded statement); Appellants failed to show expectation of confidentiality; production ordered and affirmed |
Key Cases Cited
- Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (discusses scope and purpose of attorney‑client privilege)
- In re Thirty‑Third Statewide Investigating Grand Jury, 86 A.3d 204 (Pa. 2014) (privilege/work‑product standard and appellate review on privilege issues)
- Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) (orders overruling privilege claims are immediately appealable under collateral‑order doctrine)
- Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011) (reaffirming immediate appealability of orders overruling privileges)
- Custom Designs & Mfg. Co. v. Sherwin‑Williams Co., 39 A.3d 372 (Pa. Super. 2012) (party asserting privilege must meet burden; discovery orders compelling privileged documents are appealable)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (federal rule disallowing immediate appeal of privilege rulings noted; contrast with Pennsylvania law)