Custom Designs & Manufacturing Co. v. Sherwin-Williams Co.
39 A.3d 372
| Pa. Super. Ct. | 2012Background
- Custom Designs manufactures and assembles cabinets; fire damaged its building on Nov. 4, 2002.
- Custom Designs sued Sherwin-Williams on May 21, 2004 alleging the fire was caused by SW products heating or spontaneously combusting.
- On Nov. 5, 2002 SW marketing employee Schreck and another employee visited the site to offer assistance; Lastarza of Custom Designs reported seeing flickering lights.
- On Dec. 5, 2002 Schreck prepared two memoranda directed to SW counsel Tamburrino; Custom Designs requested copies during discovery.
- A discovery master granted Custom Designs’ motion to compel production of the memoranda on Oct. 29, 2010; trial court denied SW’s appeal and ordered production.
- Sherwin-Williams appeals contending the memoranda are protected by attorney-client privilege.]
- The court addresses whether the memoranda are protected and the applicable privilege standards, including burden shifting and corporate privilege under Upjohn.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is attorney-client privilege properly invoked for the memoranda? | Custom Designs argues the memoranda were created to communicate facts for legal advice. | Sherwin-Williams contends the memoranda were prepared to aid Tamburrino in providing legal analysis to the client. | No; privilege not properly invoked; documents must be produced. |
| Does Upjohn support shielding the memoranda from disclosure? | Upjohn supports confidentiality and purpose of gathering information for legal advice. | Upjohn does not apply because record shows lack of clear request for legal advice and purpose. | Upjohn not established here; burden not met and memos not protected. |
Key Cases Cited
- Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa.2011) (two-way attorney-client privilege for legal advice)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (corporate internal communications protected when confidential and for legal advice)
- Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa.Super.2007) (burden shifting for privilege disclosures; elements of privilege)
- Maleski v. Corporate Life Insurance Co., 641 A.2d 1 (Pa.Cmwlth.1994) (corporate privilege extends to communications by corporate clients)
- Commonwealth v. Harris, 32 A.3d 243 (Pa.2011) (interlocutory appeal from privilege/order under collateral order doctrine)