231 A.3d 884
Pa. Super. Ct.2020Background
- CLL Academy, Inc. sued Academy House Council (AHC) and individual council members for tortious interference, commercial disparagement, and civil conspiracy, alleging AHC solicited a competitor to raid CLL’s parking customers after a billing dispute over construction costs.
- AHC withheld 15 internal documents (Bates AHCD1459–AHCD1574) as attorney-client privileged and/or work product; a Discovery Master conducted in camera review and proposed redactions.
- The trial court adopted many of the Master’s redactions but, on reconsideration, ordered AHC to produce the 15 documents unredacted to CLL’s counsel on an "attorneys’ eyes only" basis so CLL could assess privilege claims.
- AHC appealed, arguing that "attorneys’ eyes only" disclosure of allegedly privileged communications contradicted the purpose of privilege and in camera review, and sought protection for attorney mental impressions and strategy.
- The Superior Court held that requiring production of privileged materials to opposing counsel for "attorneys’ eyes only" was improper where the documents had already been reviewed in camera, vacated that part of the trial court’s order, and remanded for the trial court to reconsider redactions without divulging privileged content.
Issues
| Issue | Plaintiff's Argument (CLL) | Defendant's Argument (AHC) | Held |
|---|---|---|---|
| Whether trial court erred by ordering unredacted production without ruling relevance or explaining why privilege inapplicable | CLL: Needs to see unredacted documents to test relevance and exceptions to privilege | AHC: Trial court failed to explain why privilege was inapplicable; documents protected | Held: Court remanded for trial court to reconsider redactions and explain rulings; declined appellate in camera review now |
| Whether disclosure would reveal legal advice/strategy about a separate, active dispute | CLL: State of mind is at issue; disclosure necessary; docs not prepared solely for this action | AHC: Communications concern separate litigation and contain counsel advice; thus privileged/work product | Held: Court recognized privilege survives between related suits; party may not be forced to disclose such counsel communications to opposing counsel |
| Whether documents reveal mental impressions, conclusions, opinions, strategy (work product) | CLL: Some doc content reflects party mental impressions and is discoverable; disputes work-product scope | AHC: Documents contain mental impressions and attorney strategy protected by Rule 4003.3 | Held: Work-product protections apply; trial court must carefully evaluate redactions; cannot use "attorneys’ eyes only" to circumvent protection |
| Whether the "attorneys’ eyes only" order contradicted earlier permission to redact legal advice/mental impressions | CLL: Needs limited access to test privilege claims; proposed AEO safeguards | AHC: AEO disclosure defeats privilege and is inconsistent with in camera review and privilege policy | Held: Superior Court vacated the AEO portion of the order as improper for privilege disputes; CLL has no right to participate in in camera review; trial court may permit ex parte supplementation by producing party |
Key Cases Cited
- Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015) (discovery orders compelling production of purportedly privileged materials may be immediately appealable)
- Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) (orders requiring divulgence of allegedly privileged materials are appealable)
- BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019) (work-product privilege belongs to attorney; disclosure to third parties does not automatically waive protection)
- Pittsburgh History & Landmarks Found. v. Ziegler, 200 A.3d 58 (Pa. 2019) (discussing balance and importance of attorney-client privilege)
- Swidler & Berlin v. United States, 524 U.S. 399 (1998) (attorney-client privilege survives termination and death of client)
- Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800 (Pa. Super. 2011) (purpose of work-product rule is to protect attorney files and mental impressions)
- Berg v. Nationwide Mut. Ins. Co., 44 A.3d 1164 (Pa. Super. 2012) (in camera review is a valuable tool for determining privilege validity)
- Gocial v. Independence Blue Cross, 827 A.2d 1216 (Pa. Super. 2003) (trial court should explain privilege and relevance rulings)