Carlino East Brandywine v. Brandywine Village
260 A.3d 179
Pa. Super. Ct.2021Background
- Two adjoining parcels in East Brandywine: BVA (11.535 acres) built a shopping center; Carlino owns the adjacent 10.645-acre parcel and sought to develop a shopping center (Giant Food, retail, bank pad). Disputes over easements, sewer connections, a connector road, and related approvals produced years of litigation.
- Carlino sued Brandywine Village Associates, several individual partners (the Brandywine Defendants), and Attorney Paul Prince for breach of contract, tortious interference, and abuse of process, alleging defendants made false statements to courts and the DEP to delay Carlino’s project.
- In their amended answer and new matter the Defendants repeatedly asserted reliance on advice of counsel and that actions were taken in good-faith reliance on Attorney Prince’s legal advice.
- Carlino served broad document requests (2010 onward) expressly seeking communications between Defendants and Attorney Prince (and related work product). Defendants objected and refused to produce communications and a requested privilege log.
- The trial court granted Carlino’s motion to compel, finding Defendants waived attorney-client privilege and work-product protection for all communications between themselves and/or with Prince, and ordering wholesale production. Defendants appealed. The Superior Court vacated that order in part and remanded for further proceedings.
Issues
| Issue | Carlino's Argument | Brandywine's Argument | Held |
|---|---|---|---|
| Whether the trial-court order compelling disclosure of privileged materials is immediately appealable as a collateral order | The discovery order does not create a separable, collateral right warranting immediate appeal | The order compels disclosure of privileged material and is therefore appealable under Pa.R.A.P. 313 | Appealable: the court held the order was a collateral order (privilege-based discovery orders are appealable) |
| Whether Defendants waived privilege by failing to produce a privilege log | Failure to produce a privilege log demonstrated waiver of privilege | Defendants properly invoked privilege in their objections and pleadings; log absence alone should not automatically forfeit privilege | The court held failure to produce a privilege log alone is not an automatic waiver; Defendants had sufficiently invoked privilege, so the burden shifted to Carlino to prove waiver |
| Whether pleading reliance on advice of counsel waived attorney-client privilege/work-product protections | Reliance-on-counsel defense places privileged advice in issue, so privilege is waived as to those communications | Asserting reliance in pleadings does not automatically mean defendants will use privileged material; no waiver unless privileged materials are actually used or placed in issue | Pleading reliance on counsel placed the advice of counsel in issue and waived privilege as to communications relevant to that defense, but waiver is limited to materials actually put in issue |
| Whether the trial court could order blanket production (including work product) without privilege log, in-camera review, or issue-by-issue analysis | Broad production was appropriate because Defendants relied on counsel and Carlino needed documents to test the defense | Wholesale disclosure violates the particularized in-issue waiver principle; court must conduct document-by-document (or issue-by-issue) analysis and may use a privilege log and in-camera review | Trial court erred in ordering blanket production and in treating work product as automatically waived; remand for Defendants to provide a useful privilege log and for the trial court to conduct targeted in-camera review as necessary |
| Whether the trial court erred in denying preliminary objections to strike Carlino’s late reply to new matter (and whether that order can be reviewed here) | The reply cured otherwise-admitted matters and supported the motion to compel | The reply was untimely and should have been stricken; that ruling undermines the basis for compelling privileged materials | Issue waived on appeal (not preserved in Rule 1925(b)); Superior Court declined to review the January 2018 preliminary-objections order in this collateral-appeal context |
Key Cases Cited
- Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) (orders compelling privileged materials may be appealable as collateral orders)
- BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019) (distinguishing waiver analyses for attorney-client privilege and work-product protection)
- Commonwealth v. Flor, 136 A.3d 150 (Pa. 2016) (work-product protection; guidance on limited disclosure and procedural safeguards such as privilege logs and in-camera review)
- McGovern v. Hosp. Serv. Ass'n of Northeastern Pennsylvania, 785 A.2d 1012 (Pa. Super. 2001) (trial courts should particularize any order compelling privileged materials and consider in-camera review rather than blanket turnover)
- Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) (placing reliance on advice of counsel at issue can waive attorney-client privilege)
- Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011) (in-issue waiver occurs where a party asserts a claim or defense and attempts to prove it by reference to privileged material)
- T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa. Super. 2008) (appealability of discovery orders involving privilege under collateral-order doctrine)