Gillard v. AIG Insurance
15 A.3d 44
| Pa. | 2011Background
- Gillard sued insurer(s) for bad faith handling of uninsured motorist claim; discovery sought documents from counsel representing insurers; insurers asserted attorney-client privilege over attorney-created materials; Pennsylvania law (§ 5928) limits privilege to client-to-attorney confidential communications; the case centers on whether derivative attorney-to-client communications may be privileged; the Superior Court affirmed a narrow, client-communication-only view (per Fleming), which the Pennsylvania Supreme Court now revisits and overrules in part by adopting a two-way, derivative-protective approach to the privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of privilege for attorney-to-client communications | Gillard argues privilege covers derivative communications only if they reveal client-originated confidences. | AIG contends privilege extends to all attorney-to-client communications to encourage frank advice. | Two-way derivative protection permitted; both client and attorney communications can be privileged. |
| Derivatives and statutory text under § 5928 | Statute provides protection only for client-to-attorney confidential communications. | Statute should be construed to allow broader protections to facilitate candid legal advice. | Statute permits broader derivative protection consistent with legislative intent. |
| Interlocutory appeal propriety | Gillard contends collateral-order review may not extend to discovery disputes under attorney-client privilege. | Superior Court followed Ben v. Schwartz; Mohawk does not apply as of right. | Court proceeds on merits; collateral-order review treated under existing Pennsylvania approach. |
| Role of Work Product vs. attorney-client privilege | Broad two-way privilege could render work-product protections redundant. | Derivative privilege is distinct and necessary to foster full legal advice. | Two-way privilege recognized; work-product remains applicable but not dispositive for scope. |
Key Cases Cited
- Slater v. Rimar, Inc., 462 Pa. 138 (Pa.1965) (privilege limited to confidential client-to-attorney communications)
- Maguigan, 511 Pa. 112 (Pa.1986) (privilege limited to confidential client communications in context of criminal law)
- In re Estate of Wood, 818 A.2d 568 (Pa.Super.2003) (privilege applies to confidential client communications; scope discussed in context of privilege)
- National Bank of West Grove v. Earle, 196 Pa. 217 (Pa.1900) (broad perspective on attorney-client privilege; historical basis cited by majority)
- Birth Center v. St. Paul Companies, 727 A.2d 1144 (Pa.Super.1999) (confidential communications from client to attorney; limits on documents not reflecting client confidences)
- In re Search Warrant B-21778, 513 Pa. 429 (Pa.1987) (purpose and breadth of privilege; client-originated communications emphasized)
- Fleming, 605 Pa. 468 (Pa.2010) (division on scope of privilege; lead to consideration of broader derivative protection in Gillard)