258 A.3d 451
Pa. Super. Ct.2021Background
- Helen and William Fisher (the Fishers) were injured in an incident involving Bobbie Jo Green; both the Fishers and Green were insured by Erie Insurance Exchange (Erie).
- The Fishers made an underinsured motorist (UIM) claim against Erie; Erie assigned attorney Arthur J. Leonard/Robb Leonard Mulvihill to assist in investigating/evaluating the UIM claim and Leonard sent a September 3, 2015 letter to Fishers’ counsel describing that role.
- The Fishers sued Erie (Jan. 29, 2016) for breach of contract and bad faith relating to the UIM claim; they served Request for Production No. 16 seeking all documents reflecting investigation/evaluation/valuation of the Fishers’ UIM claim authored or obtained by Leonard or his firm.
- Erie objected to RFP #16 on boilerplate grounds including attorney-client privilege and the work-product doctrine and produced a terse privilege log; the Fishers moved to compel.
- The trial court found Erie’s privilege log inadequate to permit ruling and ordered Erie to submit the responsive materials for in camera review; Erie appealed as of right under Pa.R.A.P. 313 claiming the order was a collateral order.
- The Superior Court (en banc) held that in camera review was appropriate given Erie’s insufficient privilege showing but that an order directing only in camera review is not immediately appealable under Rule 313 because privilege is not irreparably lost by an in camera inspection; appeal quashed.
Issues
| Issue | Plaintiff's Argument (Fishers) | Defendant's Argument (Erie) | Held |
|---|---|---|---|
| Whether the trial court’s order directing in camera review is immediately appealable under Pa.R.A.P. 313 | Order is collateral and appealable because it invades privilege and rights would be irreparably lost if not reviewed now | Order is collateral: in camera review forces disclosure to judge and destroys confidentiality; appellate review is needed now | Not appealable: an order directing in camera review (without production to opposing party) does not irreparably destroy privilege, so Rule 313’s third prong fails; appeal quashed |
| Whether the trial court erred in ordering in camera review of documents claimed privileged (attorney-client) | The Sept. 3, 2015 letter showed Erie waived privilege or delegated investigative duties to Leonard, so documents are discoverable | Documents are privileged; Erie properly invoked attorney-client privilege | No reversible error: because Erie’s privilege log and proffer were inadequate, the court permissibly ordered in camera review to determine if privilege applied |
| Whether the trial court erred in ordering in camera review of documents protected by the work-product doctrine | The Sept. 3 letter shows role was investigative/evaluative (non-privileged) | Documents reflect attorney mental impressions/conclusions and are work product | No reversible error: where privilege or protection is contested and record is insufficient, in camera review is an appropriate tool to decide discoverability |
| Whether Erie’s objections were merely general and insufficient | N/A (Fishers argue Erie’s objections were boilerplate and inadequate) | Erie contends it properly asserted privileges | Court did not resolve as a separate reversible error given disposition; held Erie’s log was insufficient to meet burden, supporting in camera review |
Key Cases Cited
- United States v. Zolin, 491 U.S. 554 (1989) (in camera review permissible where party seeking review makes factual showing adequate to support good-faith belief that materials may reveal evidence establishing an exception to privilege)
- Rae v. Pennsylvania Funeral Directors Ass’n, 977 A.2d 1121 (Pa. 2009) (Rule 313 collateral-order test is narrow; all three prongs must be clearly present)
- Berg v. Nationwide Mut. Ins. Co., 44 A.3d 1164 (Pa. Super. 2012) (in camera review is a valuable tool when privilege log alone is inadequate)
- CCL Academy Inc. v. Academy House Council, 231 A.3d 884 (Pa. Super. 2020) (reiterating that privilege logs are primary source and in camera review is available when log is insufficient)
- Ignelzi v. Ogg, Cordes, Murphy & Ignelzi, 160 A.3d 805 (Pa. Super. 2017) (party claiming privilege must assert facts to show privilege properly invoked; court may remand for in camera review if record inadequate)
- T.M. v. Elwyn, 950 A.2d 1050 (Pa. Super. 2008) (if party fails to identify or describe documents claimed privileged, court cannot determine privilege and in camera review may be required)
- Gocial v. Independence Blue Shield, 827 A.2d 1216 (Pa. Super. 2003) (trial court must rule on relevance of each privileged item or explain why privileges are inapplicable; in camera review may be necessary)
- Yocabet v. Presbyterian, 119 A.3d 1012 (Pa. Super. 2015) (party invoking a privilege must set forth facts showing privilege properly invoked; burden then shifts)
- Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253 (Pa. Super. 2011) (documents ordered produced and then disseminated cannot be undone; supports collateral review when disclosure to opponent is ordered)
- McIlmail v. Archdiocese of Pittsburgh, 189 A.3d 1100 (Pa. Super. 2018) (discovery orders are generally interlocutory; orders requiring disclosure of privileged materials may be appealable if privilege question is separable and immediate review necessary)