In re Thirty-third Statewide Investigating Grand Jury, 624 Pa. 361

Background

The Pennsylvania Turnpike Commission (Commission) was the subject of a statewide grand jury investigation by the Office of Attorney General (OAG) into possible criminal conduct involving the Commission, its employees, and third parties. The OAG issued subpoenas seeking Commission documents.
The Commission produced a large volume of material but withheld certain communications as protected by the attorney-client privilege and the attorney work-product doctrine.
The Commission proposed a production process using a privilege log and in camera court review; the OAG rejected that process and sought unfettered access under the Commonwealth Attorneys Act (CAA) books-and-papers provision.
The supervising judge of the grand jury denied the Commission’s protective order, concluding the OAG could access the requested materials under 71 P.S. § 732-208 and that privilege/work-product protections did not bar production in this context.
The Commission sought review in the Pennsylvania Supreme Court; the Court accepted review (addressing jurisdictional concerns) and affirmed the supervising judge, holding that attorney-client privilege and work-product doctrine do not prevent OAG access to agency materials in a grand jury investigation under the CAA.

Issues

Issue	Plaintiff's Argument (Commission)	Defendant's Argument (OAG)	Held
Whether attorney-client privilege applies to Commonwealth agency records in an OAG grand jury investigation	Privilege statutes apply broadly to all clients and attorneys; nothing in the CAA expressly removes the privilege for agencies	Government attorneys serve the public interest; allowing privilege would let public agencies hide evidence and misuse taxpayer-funded counsel	Privilege does not preclude production to OAG in this context; public (the Commonwealth) is the client and impliedly waived privilege for agency records in an OAG grand jury investigation
Whether the CAA books-and-papers provision waives or overrides privilege/work-product protections	§ 732-208’s plain language does not expressly waive privileges; later statutes should not be read to erase preexisting privileges absent clear intent	§ 732-208 gives the OAG broad, contemporaneous access to agencies’ books and papers necessary to perform its duties, with no privilege exception	The CAA authorizes OAG access to necessary books and papers and its plain language contains no privilege exception; supervising judge did not err in compelling production
Whether a Commonwealth agency and the OAG are the same “client” for waiver/privilege purposes	The agency is the client; Rule 1.13 commentary does not transform OAG into the agency’s client or permit OAG to waive agency privilege	In the government context the client concept may encompass a branch of government or the government as a whole; public interest can supersede confidentiality	Court did not need to resolve this separate theory; it held on statutory and public-interest grounds that agency privilege does not block OAG access in this setting
Whether work-product protection shields requested materials from grand-jury subpoenas	Work-product rules and procedural protections apply to government counsel as to private counsel; prior state decisions protect agency work product in other contexts	Work-product protection should not block OAG grand-jury investigations; no showing was made that requested materials were attorney mental impressions or core work product	Work-product doctrine did not protect the materials here; supervising judge found no factual basis for core work-product protection and the doctrine does not bar production under these circumstances

Key Cases Cited

Trammel v. United States, 445 U.S. 40 (U.S. 1980) (describing privilege principles and limits)
Commonwealth v. Chmiel, 738 A.2d 406 (Pa. 1999) (privilege is deeply rooted but balanced against truth-seeking)
Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (discussing tension between privilege and factfinding; scope of attorney-client protection)
In re Grand Jury Subpoena Duces Tecum (White House), 112 F.3d 910 (8th Cir. 1997) (governmental attorney-client privilege not invoked to shield White House documents in federal grand jury probe)
Witness Before the Special Grand Jury, 288 F.3d 289 (7th Cir. 2002) (privilege does not protect state official communications with state lawyers in federal grand jury investigation)
In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) (government attorneys owe duties beyond client defense; privilege cannot shield criminal misconduct from grand jury)
United States v. Arthur Young & Co., 465 U.S. 805 (U.S. 1984) (distinguishing public-accountability functions from private-client protections)
In re Investigating Grand Jury of Philadelphia County, 593 A.2d 402 (Pa. 1991) (recognizing crime-fraud exception to privilege)