189 A.3d 432
Pa. Super. Ct.2018Background
- Appellee sued Boyle Litigation (Boyle) in 2014 for legal malpractice, alleging improper commingling of trust funds. Discovery sought an internal November 2012 email Mr. Sherman (a former non‑attorney employee and trust‑account reconcilor) sent to himself documenting concerns about the trust account.
- Sherman used his personal email to create and keep the notes and later consulted outside counsel and an in‑firm lawyer; at his deposition Boyle’s counsel asserted attorney–client privilege over the email.
- Appellee moved to compel production of the email; the trial court ordered Boyle to produce it, concluding the self‑sent notes were not confidential communications to an attorney and thus not privileged.
- Boyle appealed the interlocutory discovery order, arguing the notes were privileged, the court should have conducted an in‑camera review, and that the order improperly compelled production from Boyle rather than Sherman (a non‑party and presumed privilege holder).
- The Superior Court accepted jurisdiction under the collateral‑order doctrine (because the order compelled potentially privileged disclosure), but affirmed: Boyle lacked standing to assert Sherman’s privilege and failed to satisfy the statutory four‑element privilege test; therefore no in‑camera review was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sherman’s self‑sent notes (email) are protected by attorney–client privilege | Notes were prepared in anticipation of consulting counsel and thus privileged; privilege encourages candid communications | Notes were not communications to an attorney (sent to himself before consulting counsel); Boyle asserted privilege at deposition | Not privileged: created before/independent of attorney consultation and not a confidential client→attorney communication; privilege not shown |
| Whether court erred by not performing in‑camera inspection before ordering disclosure | An in‑camera review was necessary to determine privileged content | In‑camera review unnecessary because document is not a confidential attorney communication and Boyle failed burden to invoke privilege | No error: trial court reasonably declined in‑camera review once privilege was not properly invoked |
| Whether Boyle (defendant) may assert Sherman’s privilege and be ordered to produce Sherman’s email | Boyle’s counsel asserted privilege on Sherman’s behalf at deposition; Boyle may protect interests | Sherman, as the creator, is the privilege holder; Boyle has no attorney–client relationship with Sherman and cannot invoke Sherman’s privilege | Boyle lacks standing to assert Sherman’s attorney–client privilege; privilege belongs to Sherman, not Boyle |
| Appealability of interlocutory discovery order compelling possibly privileged materials | Order compels production of allegedly privileged material and is collateral and immediately appealable under Rule 313 | Appellee argued appeal was premature and Boyle failed to make a colorable privilege claim and thus appeal should be quashed | Appeal permissible under collateral‑order doctrine but merits resolved against Boyle; Superior Court exercised jurisdiction and affirmed trial court |
Key Cases Cited
- Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) (orders compelling production of privileged materials may be immediately appealable where post‑judgment review would be inadequate)
- BouSamra v. Excela Health, 167 A.3d 728 (Pa. Super. 2017) (discovery orders compelling production of potentially privileged communications are appealable collateral orders)
- Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (scope of attorney–client privilege protects confidential communications both client→attorney and attorney→client)
- Custom Designs & Mfg. Co. v. Sherwin‑Williams Co., 39 A.3d 372 (Pa. Super. 2012) (articulates four‑element test and burden‑shifting framework for asserting attorney–client privilege)
- Commonwealth v. McKenna, 213 A.2d 223 (Pa. Super. 1965) (reiterates that the client is the holder of the attorney–client privilege)