Law Office of Douglas T. Harris v. Philadelphia Waterfront Partners, LP

presented in this case suffices evidence T. The LAW OFFICE OF DOUGLAS fact

support findings of and conclu- HARRIS, ESQUIRE, Douglas and Thus, law. we will address sions of Harris, Appellees Esquire, T. concerning applicability issue Mother’s of Act. v. WATERFRONT PHILADELPHIA reject Finally, we Mother’s PARTNERS, L. LP and Charles testimony that Dr. Taroli’s contention Pat- Kamps III A. and Scott Blow Initially, law.

against the evidence and we Ap- Hanley Kamps, T. and Todd rick stipulated note that Mother to Dr. Taroli’s pellants. qualifications expert in field of pediatric forensics, which she Partners, Philadelphia LP Waterfront identify injuries resulting trained to from Develop- Philadelphia Waterfront N.T., 9/12/07, physical abuse. at 132. ment, LLC, Kamps L. III and Charles claim, she basis Mother’s wherein Hanley, A. Patrick T. Blow and Scott record, only makes one reference to the (N.T., 9/12/07, at 171 Reproduced Record 156), diagno is that Taroli’s Dr. medical erroneously upon sis of R.P. was based LLC, Development Group, Churchill L.P.’s statements to Ms. Demark. Mother Development Residential Churchill Dr. misrepresents the record. Taroli did Develop- LP, Churchill Commercial diagnosis physical not base her medical ment, LP, Logue, Joseph F. Jr. Instead, L.P.’s testimony. abuse on she Douglas Harris, Esquire, Appellees. T. upon the relied medical information con Pennsylvania. Superior Court of hematoma, R.P.’s cerning subdural retinal skull, hemorrhaging, and fractured in addi Argued May photographs tion to her review of the Sept. Filed bruises, noting R.P.’s extensive that “even by just reviewing photos without alone information, very other it is obvious N.T., severely.”

the child has been beaten Indeed, rendering at 157. her

diagnosis injury,” of “non-accidental head L.P.’s

Dr. Taroli made no reference to

interview with Ms. Demark. See id. the trial court did Accordingly,

155-57. permitting opinion the medical

not err Dr. Taroli.

¶ 58 Order affirmed. them, PWP’s 7777 State Road

abutting third- convey to the agreed to predecessor the 60 acres of 28 of party approximately option roughly and subject $1.7 land financing, obtaining After million in cash. PWP, prede- assigned had been which Newton, Blunk, Henry appel- E. for Van 2005, be- February of interests cessor’s lants. ultimately land it prepare gan Roberts, Philadelphia, Logue for G. Carl along 7777 State Road to obtain planned Churchill, appellees. and development. Kahn, Philadelphia, for Law James R. ¶ ap- hired In October of PWP Office, appellee. immedi Harris as counsel. Harris pellee BOWES, and BEFORE: GANTMAN began searching for investors ately TAMILIA, JJ. in exercis to assist wherewithal PWP Even purchase option. million ing its $8 TAMILIA, BY J.: OPINION appellee introduced PWP to tually, Harris ¶ 2007, Philadelphia 1 At EDA Wa- in pro an interest Logue, expressed who (PWP), Partners, L. LP Charles terfront Beginning in December viding financing. III, Blow, Patrick T. Han- Kamps Scott A. De appellee of PWT3and Churchill ley, Kamps appeal Todd from the and (CDG), entity a Group business velopment 22, 2007, granting Order The Law October negotiating by Logue, began controlled Harris, Douglas Esquire of T. and Office exercise PWP’s ways in CDG could which Harris, Esquire’s T. motion to Douglas negotia these option. million When $8 of afore- compel directing production and amicable through, parties’ tions fell Hanley’s appellants’ mentioned Blow and abrupt came to an relationship business discovery. At broken end. 2007, PWP, Philadelphia EDA Waterfront III, (PWD), Development, Kamps PWP, LLC 10, 2007, appellants April 4 On Blow, compan- Hanley appeal and from III, Blow, PWD, Hanley and filed Kamps 22, 2007, Order, ion also dated October equi- monetary both and complaint seeking compel motion to and granting Harris’s claims for fraudu- raising and table relief Han- directing production also of Blow and trust, “dissi- conveyance, constructive lent ley’s computers. December broken On collateral,” fiduciary of pation of breach et al.’s PWP, granted application we con- and breach of duty, conspiracy, civil for consolidation. CDG, named complaint tract. The LP, Development, Residential Churchill corporate prede- May 2 In of LP— Development, Churchill Commercial option pur- obtained cessor PWP as the to hereinafter collectively referred property approximately 60 acres chase Harris Logue, and “Churchill Philadelphia Road in along 7777 State Entities” — appellee On June as defendants. million. Seven third-party from a for $8 Harris, as The Law Office doing business later, in PWP’s months December Harris, filed his Esquire, T. Douglas into a collateral entered predecessor raised complaint The complaint. own third-party. a second agreement with contract, breach anticipatory claims for agreement, the terms of the Pursuant to unjust enrichment and equitable estoppel, agreeing exchange third-party for the Hanley; a III, Kamps Blow against of land 40 acres convey approximately per against point during claim for slander and se some libel summer PWP, III, Blow, Kamps Hanley; compel. Harris filed a motion to On Octo- per against second claim for slander se hearing ber the trial court held a III; Kamps a claim inflic- for intentional during on Harris’s motion the fol- which against Kamps tion of emotional distress lowing exchange transpired: III, Blow, and, Hanley, Kamps; final- Counsel, Okay. you did Court: ly, a claim conspiracy against for civil agree to an to produce things Order ten PWP, Blow, III, Kamps Hanley, and days August after 27th? Kamps. Honor, Appellants’ Counsel: Your I be- ¶ At point during some the summer of lieve did. [co-counsel] propounded request for the Harris it complied The Court: Has been with? production appellants. of documents on 1925(a) Bernstein, J., Opinion, Rule so, for, you Counsel: I believe except 27, 2007, at August 1. On a con- said, hardware, which were the two sent directing appellants Order was issued computers, the first of which became provide complete “to full and verified an- inoperable in of '06 November before Request swers to ... for Pro- [Harris’s] matter; second, any litigation in this days.” duction of Documents within ten just ago. a few months have the We Order, Id. the trial court noted: it, produce hardware. would We but “[Appellants] agreed produce and were possibility that there is attor- produce Septem- ordered to not later than ney/client privileged information on the ber 6th all e-mails and other documents hard drive. computers [appellants]

from the Scott Well, you figure The Court: can’t Hanley.” Blow and Patrick (emphasis Id. out, you? added).1 The trial court further noted that technicians working Counsel: There are object production did not computers currently. on both the contemplated by any this at Order time. computer The Court: how does a Well Id. at 1-2. break? nonetheless, Appellants, failed to sorry? the e-mails and documents and at I’m Counsel: Appellants appellant 1. contend Harris never demanded of the to make sure that the record production appellate of the themselves and forwarded to an court contains possibility production necessary of such was those documents to allow a com- ” sponte by plete judicious raised "sua the trial court. See assessment issues (internal e.g., Appellants’ Supplemental Reply appeal.”) Brief to raised on and external ci- omitted). Appellee’s Supplemental Support Brief in tations While there are numerous Quash Appeal discovery appellants’ Motion to at 2872 EDA at documents contained in record, recognize reproduced fail to there is no we are uncertain as to meaningful reproduced producing represents distinction between whether the record complete "all e-mails and other documents” from a set of the various and relevant dis- computer producing computer covery itself. documents filed. The trial court notes 1925(a) Record, Opinion discovery See Rule accord it had conducted “numerous hear- Moreover, 2; 1925(a) ings,” Opinion appellants did these tran- No. Order. scripts include documentation were also omitted from the certified supplemen- within the certified record or the record. We cannot remand this matter to the May preparation tal record filed in this Court on trial court for the of a second supplemental Bennyhoff Pappert, record when we are not even (Pa.Super.2001), appeal scope denied 573 Pa. certain as to how to delineate the (2003) ("It obligation 823 A.2d 143 is the remand. to Harris’s abili- prejudice without computer motions The Court: How does jurisdiction our ty raise the issue of break? Harris does so proceedings; in the later Honor, comput- I’m not a Counsel: Your On December appellate his brief. you. I couldn’t tell expert. er court issued a Rule Well, you the techni- The Court: did ask discussing granting reasons for Opinion you computer experts cian before came compel. Harris’s motions that it was bro- represent into court to ken? addressing the merits of 8 Before computer question I Counsel: know second must first resolve appeal, we I don’t know to do so. jurisdiction was a victim of a virus. we have of whether acquired. how it was this consolidated Appellees contend from two inter- inappropriately taken Well, they right have a Court: locutory unappealable Orders. See information, Order do so how—what Orders; Pa.R.A.P. Final generally, you me to enter to enforce the w[a]nt (b) Generally, Definition of final order. you August agreed upon Order that ap- offered Appellees further contend 27th? to hire a third- pellants opportunity the Right. produce the Counsel: We compile vendor to a list of docu- party computers. computers ap- so ments contained You can? The Court: objections informed pellants could raise Counsel: We can. subject attorney- any documents Okay. you The Court: When do want privilege. computers, [Harris’s counsel]? ¶ invoking the Appellants 9 counter days. Harris’ Counsel: five Within generally, doctrine. collateral order See days. The Court: Within five (b) 313, Orders, Def- Pa.R.A.P. Collateral Appellants’ Counsel: That’s fine with reject appellees’ also Appellants inition. me. and, third-party to hire a vendor proposal granted The Court: Motion is ... Plain- so, doing allowing note that a third- tiffs are directed to all e-mails on the privileged to view information and other comput- documents from the in waiver of the computers would result plaintiffs ers of and Patrick Scott Blow respect Hanley days. within ten e.g., documents viewed. See Carbis N.T., Hearing, Motions at 12-14. LLC, Hill, King, Barth LLP v. & ¶ Subsequently, 7 entered the Court (Pa.Super.2007), 579 subject appeal Orders of this two Bonds, 689 Bonds v. timely notices of followed. On No- (1997). A.2d vember the trial court entered recently This dis Court 1925(b) Order at each docket number and its the collateral order doctrine cussed state- directing appellants to file concise compelling orders application complained appeal. ment of matters of on documents: production Pa.R.A.P.1925, Opinion in generally, See interlocutory order to be Support In order for an Appellants complied of Order. collateral, must be an or there timely court’s directives in deemed with the trial ac 13, 2007, to the main cause of der collateral November Harris fashion. On be too tion; involved must right quash appeals. We filed motions denied; and to be denying important review subsequently issued Orders question presented attempt must be such make no if postponed review is until final rely the standard on which we apply judgment the claim irreparably will be in determining whether an order is col Schwartz, lost. Ben v. 556 Pa. Rather, lateral to the Orders at issue. (1999), A.2d citing Pa.R.A.P. they merely aver: “It is well-settled that 313(b). A discovery order is collateral preserving, attorney-client privileged and only separate when it is and distinct attorney work-product privileged informa from underlying cause of action. Id. important rights tion are justifying collat ” at In determining whether appeals.... e.g., Appellants’ eral See right important involved is too to be in Support Appellants’ Memorandum review, it denied must be determined Appellees’ Quash Answer to Motion to right deeply whether the rooted in Appeal EDA Appel public policy it goes beyond such that lants do point specific docu controversy at hand. Id. at 552. ments or other information contained on Finally, there must be no effective being subject to the at means of review available after Order torney-client privilege.2 certified requiring the production documents is gives record no appellants indication ever Id., judgment. reduced to citing Kelly attempted seeking pro to file a motion (3d. Co., v. Ford Motor 110 F.3d generally, tective order. See Pa.R.C.P. Cir.1997). Moreover, Protective Orders. Ide, Feldman v. 1210-1211 there is no indication filed a (Pa.Super.2007). previ- “This Court has motion for trial reconsideration with the ously appeal court, reiterate, considered the merits of an appellants and to con from a requiring pro- Orders, order the only sented to underlying the duction of documents there a where is but to precursor also a Order that direct attorney-client ‘colorable claim of privi- [ ] production ed of all e-mails and other lege appellate made review proper’ [which] documents contained on the broken com stage at this proceedings.” the Carbis puters. 577, supra at quoting Gocial v. Cross, 1216,

Independence Blue A.2d 12 Despite glaring 827 these deficien (Pa.Super.2003). cies, 1220 considering we still are amenable and, Appellants, appeal purposes appellate who were successful in obtain- for re view, exist.”), ing supersedeas by a from this Court Order what is not of record does not 126, 16, 2007, that, allege citing Spink Spink, Pa.Super. 422 dated November v. con- A.2d 277, (1992). Order, formity 280 n. 1 they produced "any with this discoverable, non-privileged information from appeal The dissent concludes this is moot computers” timely Appel- their fashion. parties pan- because have “both informed this They allege they lants’ brief at n. 2. also underlying by el that the issue was resolved” privilege log judge forwarded a trial agreement. quash, Harris' motion to which however, Appellants, in camera review. it felt support, the dissent cites for avers that the unnecessary any to include evidence that appellees respond did not to an offer to create steps these were taken within the certified privilege log made after the Orders sub record, or, supplemental certified short, record judice were entered. there is no matter, reproduced and, were, for that record. See agreement even if there an issue e.g., Keystone Group, Group, Tech. Inc. v. Kerr simply does not become "moot” because an Inc., (Pa.Su- 824 A.2d 1228 n. party baldly complied interested avers that he ("It per.2003) appellate panel axiomatic that an is with a motions directive more than considering only alleged production court is limited to those facts and belated of a Rule 1925(b) duly which have been certified in the record statement moots the issue of waiver. attorney- counsel to waive underlying ap- authorize the merits of whether Moreover, they contend privilege. of attor- a “colorable claim” peal present § Con- to 42 Pa.C.S.A. pursuant given the unsettled ney-client privilege attorney, communications motions to fidential by Harris’s question implicated does, to waive out, competent never “counsel is point quash. Appellees as the attorney-client privilege, court, failed to appellants’ counsel trial client, attorney and not the belongs to the computers. object production _” Supplemental e.g., Appellants’ See N.T., at 13-14 Hearing, Motions (“We Supplemental Appellee’s Brief to Reply ... Ap- Quash Motion to Support me.”). Brief general prop- That’s fine with As (emphasis in EDA at 6 peal at 2872 osition, preserve a claim of in order to purposes, For all intents original). review, must appellate error 302(a) inappli- posit that Rule objection alleged specific make attorney, where cable to situations timely trial court in a error before the authorization, waives explicit without appropriate stage at the fashion and in- by failing to Campos, proceedings. Kaufman on a assert voke and/or (Pa.Super.2003), A.2d court. the trial client’s behalf before (2003), Pa. 839 A.2d 352 denied 576 Co., Philadelphia Brown v. Tribune “In a civil provides; 14 Section 5928 (1995), competent counsel shall not be matter 544 Pa. appeal denied commu- testify to confidential permitted (1996), 519 U.S. unit certiorari denied client, nor him his nications made to (1996). 117 S.Ct. 136 L.Ed.2d compelled be to disclose shall the client objection results Failure to raise such an privilege is same, in either case this unless Id., (Em- underlying issue. in waiver of the the client.” upon waived 302, Requisites added.) for Re- accord Pa.R.A.P. question as to wheth- phasis (“Issues (a) Issue, rule applied viewable General waiver can er Rule raised in the lower court are waived ex- attorney, not an without situations where authorization, the first time on and cannot be raised for to invoke fails plicit and/or claim, A is innate- on a appeal.”). attorney-client privilege waived which assert the not merit, a trial court is ly without cannot be considered before the client’s behalf attorney-client privi- “colorable claim” of settled in this Commonwealth.3 determining whether lege purposes ¶ to section Comment 15 The Official Order(s) an is collateral. “Substantially is: provision 5928 states (P.L. 23, ¶ May act of 1887 a recognizing they have reenactment Appellants, 13 321).” 5(d) (28 158) (No. 89), § § P.S. with Rule waiv- significant problem Stat- Pennsylvania title 28 of in an at- Former er, arguments raise numerous 321, utes, to section precursor Initially, section application. tempt to defeat its shall coun- 5928, follows: “Nor provided as explicitly argue they did grounds (con- other Walker, (Pa.Super.1999), supra n. 11 at 584 3. See Carbis affirmed 386, (2001) (concluding A.2d 376 attorney-client Pa. 787 567 cluding attorney waived the an attorney-client privilege appellant waived the inadvertently by dis- privilege his client object but document, through failure noting: it’s counsel’s closing but a confidential implicit argued that, appellant giving no indication under “[Appellant] not contend does pos- failings was not through law, counsel’s waiver be no waiver of Pennsylvania there can 302(a)); e.g., appel- see also counsel.”); sible under Center v. St. privilege by Birth Inc., at 18-19. lants' brief 727 A.2d 1164 Companies Paul 1230 competent testify

sel be permitted noting: “Although now in embodied stat- ute, confidential communications made to him attorney-client privilege deeply by his client compelled law.”) (Additional or the client be in rooted the common same, disclose the unless either case this omitted.) citations privilege upon be waived law, At it generally 17 common terms, client.” the lan- substantive recognized that the attorney-client privi guage of former section 321 is identical to lege client, belongs attorney. to the not the language of section 5928. Evidence, § Wigmore, (McNaugh 8 2327 consistently 16 Former section 321 was rev.1961). Yet, implicit ton also in the interpreted princi- as “a restatement of the common law is the irrefutable notion ple attorney-client privilege as it existed attorney acts as his client’s authorized at common law.” Cohen v. Jenkintown agent. supra See Carbis at 584 Co., Cab 238 A.2d 357 (“[W]hile attorney-client privilege be (1976), 692 n. 2 April denied client, longs attorney, acting (“Hence, section [former 321] has agent, may sufficiently neg the client’s been prin- treated as restatement of the ligent in it producing privilege ciple attorney-client privilege as it exist- ”), .... be waived Fid. Deposit law.”). ed at common Section which McCulloch, Co. v. F.R.D. is identical in substantive content to for- (“[A] (E.D.Pa.1996), accord id. at n. 11 interpreted mer section 321 has been also privilege, client who ‘fails to claim the ei aas restatement of the common law attor- another,’ through ther himself or waives ney-client privilege. Lane v. Ac- Hartford privilege.”), citing Maleski Chronis Co., Indemnity cident & 5 Pa. D. & C.4th Co., Corporate ter v. Ins. 165 Pa. (“[Section essentially 5928] is Life (1994), Cmwlth. citing in Pennsylvania codification common Wigmore, § turn Evidence (citations attorney-client privilege.”) law of rev.1961).4 (McNaughton No reasonable omitted); Walker, supra see also Carbis person vigorously good would contend in (“Courts in this Commonwealth have attorney that an faith is unable to waive recognized attorney- that ‘the roots of the on a client’s firmly entrenched ’ explicitly behalf when authorized to do so. ”); our common law .... Common- cf. Chmiel, Accordingly, we cannot construe wealth v. Pa. phrase (1999), “unless either case this writ certiorari denied upon by be waived the trial the client” in a 528 U.S. 120 S.Ct. 145 L.Ed.2d (2000) i.e., strictly colloquial requiring as (applying 841 the criminal attor- law sense — in ney-client personally, orally a client to either privilege codified in 42 Pa.C.S.A. § writing, Confidential communications submit a waiver to a court attorney, jurisdiction in in the competent which is worded a manner order for substantially similar to section and waiver to be deemed effective.5 Notably, Wigmore recognized Wigmore, § the common 5. See also 8 Evidence 2292 1961) ("It (McNaughton may rev. here be by law can be waived privilege many jurisdic- executor, administrator, heir, noted that the has in “the the the the tions been embodied in statutes. These have legatee” next of kin or the on a decedent’s point, helped seldom settle mooted but guardian by behalf and on a ward’s behalf. on the other hand have chanced seldom Wigmore, (McNaugh- § See 8 Evidence 2329 disfigure the common law rule or to unset- rev.1961). ton logical development. original tle its Their

1231 attorney- implicit waiver authority provides nanced weight 18 The failings of through the privilege client carries proponent privilege the of a that commentator minimum, prominent counsel.7 One of, baldly at the the burden in inherent the theoretical flaw discussed asserting privilege.6 the invoking and/or cannot occur concluding implicit waiver rely on Even the cases which failures as follows: through counsel’s advocating for the presuppose party the invoked, justification for actually asserted little theoretical privilege There is and/or of coun- Ap- negligent the court. the conduct privilege ignoring the before lower 18-19, preservation to the pellants’ citing McGovern sel relative brief If the concern claims. privilege Northeastern Penn- client’s Hosp. Serv. Ass’n of (Pa.Su- in hold- perceived unfairness is with the sylvania, 785 A.2d 1018 negli- the responsible (concluding filing ing that of an per.2001) agents, of its this would untimely objection gent the trial court actions before precluding result of destroy attorney-client privi- lead to the absurd did not Furthermore, has, in context because corporate common law waiver lege). client, fiction, discern, legal as a always corporate counte- as far as we can privilege properly wording commonly ignored by showing that the has been the courts invoked_”) (citation omitted); being merely attempt and to an to name Joe v. Pris (em- recognize privilege.”) Servs., (Pa.Cmwlth. the common law 31 on Health original), citing § phasis 28 P.S. 321 in 2001) ("The asserting privilege party has former (additional omitted). citations properly prove that it is the initial burden to invoked, seeking party to overcome and the (McNaughton § Wigmore, Evidence 2322 8 prove ap privilege the burden to has 1961) ("The being claim of rev. made, exception privilege.”), plication judge determines whether the SEPTA, (Pa.Cmwlth. Joyner v. 736 A.2d 35 claim.”) (em justify facts the allowance of the 1999). phasis original), citing People’s Bank v. Brown, (3d Cir.1902) ("There 112 F. (McNaughton § Wigmore, 7. 8 Evidence requisite every it fore it is instance 1961) ("What a waiver constitutes judicially rev. be determined whether the shall gives clear particular question implication? be real decision no communication Judicial and, ly privileged, primary § in order that such question.”), to this accord answer made, advisedly determination it is ("All pro involuntary disclosures ... are not indispensable apprised, that the court shall be privilege, principle tected through preliminary inquiry, character and attor ... leaves to the client ... the law (additional circumstances.”) izing citations caution....”); Carbis ney to take measures of omitted); Stone, Taylor, Scott N. Robert K. ("[T]he appellate courts supra at 579 1.61, (2d Privileges § at 1-161 Testimonial jurisdiction [of have found waiver of this 1993) ("The always on the ed. burden attorney-client privilege] when the communi asserting to demonstrate presence or commu made in the cation is elements.”); each its essential Nationwide ”), ... party or to the court nicated to a third Fleming, A.2d Mut. Ins. Co. v. Bonds, quoting Bonds v. (Pa.Super.2007), appeal granted 1265-1266 (1997); Popovitch v. Kas Pa. 311, ("In A.2d 1270 case (W.D.Pa.1947) F.Supp. perlik, 70 Supreme our Court and from law from privilege (concluding attorney-client is Court, inquiry to two-part has been used objec during raised trial waived when not disputes over disclosure of communi resolve tion); § Waiver Rule of Evidence Unif. attorney-client privilege has for which cations 2005), (b) (amended Involuntary Privilege of part inquiry is been asserted. The first ("A privilege not claim of is Disclosure privilege indeed attorney-client does whether compelled by a disclosure that waived communication.”) (cita apply particular ato opportunity to erroneously an or made without omitted); supra at 581 tions Carbis added). (Emphasis privilege.”) claim ("[Tlhe attorney- has asserted the who initially forth facts privilege must set client 1232 302(a) waiver, only through agents. through act To or common law is

distinguish attorney-agents between every applied to conceivable issue—from types agents perverse other is be- involving privilege those other forms of cause it holds the individual who knows magnitude. those of constitutional See charged and is respon- law with the e.g., Kauffman, Commonwealth v. sibility attending legal interest (1992) 605 A.2d of the client to a lesser standard of (“In case, the instant the Commonwealth conduct. gov did not assert either a common law Rice, Attorney-Client Privilege Paul R. or an in privilege ernmental/executive States, 9:73, § in the United at 9-261 Therefore, they privilege. former’s were (1993); 5, supra. Wigmore, see also n. in not considered trial court.... The discussing implicit waiver of the attor- a privilege failure assert constitutes a ney-client privilege, noted as follows: thereof.”); Mueller, Kelley waiver deciding (2006) [what constitutes waiver Pa. 203-204 (per

by implication], regard must be had to curiam) (applying Rule and revers predicated double elements ing analyze, decision to Court’s inter waiver, i.e., every only not the ele- alia, challenge a constitutional which had intention, ment of implied but also the court); not been raised in the trial Com element of fairness and A consistency. Clair, monwealth v. 458 Pa. privileged person would seldom be found (1974) (adopting the waiver doc waive, if his intention not to abandon trine, yet as of be codified Rule could alone control the situation. There 302(a), for criminal proceedings and refus objective always also the consideration ing to constitutional review claims which that when his conduct touches a certain court); were not raised before the trial see disclosure, point requires fairness Freeman, also Commonwealth v. 573 Pa. privilege that his shall cease whether he 532, (2003), A.2d writ cer intended that result not.... He tiorari denied 543 U.S. 125 S.Ct. disclose, elect to withhold or to but after 160 L.Ed.2d (abolishing relaxed point a certain his election must remain application capital of the waiver doctrine in final. 302(a)). pursuant to cases Wigmore, § Evidence (McNaugh- rev.1961). ton support 20 We find no in the law that a implicit the notion client cannot phrase

II19 The “fairness and con ly attorney-client privilege waive the on sistency” significance analysis is of to our appeal through his counsel’s failure to Allowing litigant two reasons. who raise the issue before the trial court. attorney- fails to invoke assert and/or considerations, foregoing Based on the we privilege client before the trial court to hold, subject Supreme to our Court’s in then raise the for the first time authority exceptions herent to carve out only injustice an works doctrine, Freeman, supra the waiver see itself, system court it pro also would 402, that, 302(a), a im under Rule litigants vide with a built-in mechanism for plicitly waives rigging judicial hopes process attorney Moreover, when his fails to invoke wearing opposition. down the and/or court, the trial assert before through waiver counsel’s failure to raise court, through only either to then raise the issue for the first issue before explicit implicit application appeal. or of Rule time on

¶ subject to were contend the indicate the Orders Appellants next consent, objection. at entered not over attorney represented who them the Oc 10/22/07, 2007, N.T., at 13-14 22, Hearing, limit hearing tober motions “had Motions (“We ease-in-chief, ... produce computers knowledge ed was not can me.”). Appellants’ counsel present any previous appearances at court That’s fine with com- produce hearings upon opposing [the counsel’s dis did state: ‘We would motions, covery possibility that there spoken puters], and had never di but for attorney/client information on rectly privileged with the individual Blow is add- Hanley.” e.g., Appellants’ Supple (emphasis and the hard drive.” Id. at See ed). judge pressed trial Reply Appellee’s Supple mental Brief to When the learned further, however, Brief in counsel imme- Support mental of Motion to the issue 2, Quash Appeal diately capitulated at 2872 EDA at n. 1. and stated: “We true, may very computers.” all Id. at 13. although produce This well be We way objection to where an substantiating we have no these are at loss as was allegations given reiterating the state of the certified made. It is also worth consented, Au- e.g., Keystone appellants already record. See Tech. had on Group, Inc., 27, 2007, Group, gust produce Inc. Kerr “all e-mails computers (Pa.Super.2003), citing Spink n. 6 v. other documents from Han- Spink, [appellants] Scott Blow and Patrick (1992). 1925(a) Nonetheless, Frankly, n. 1 ley.” Opinion assum at even true, ing appellants’ allegations objection an perplexed we we are as to how 302(a) producing computers possi- cannot find Rule is waiver overcome themselves merely attorney bly appellants because an was not ade could sustained when so, quately prepared. “all already agreed Were we to do such had e-mails exception inevitably swiftly would and other documents” these Appel- consume the rule. in the first instance. See cf. Twenty- at In re lants’ brief ¶ 22 Appellants argue next their counsel Investigating Fourth Statewide Grand actually object did producing Blow and Pa. A.2d 505 Jury, 589 Hanley’s computers at the October omitted). (additional citation hearing. support argu- of this ment, rely appellants on an email from one again recognizing no ob- Appellants, appellees’ counsel wherein the latter made, jection actually imply was then states: reference to “[Counsel’s] 22, 2007, mo- transcripts of the October early in argument was made when he hearing tions could be inaccurate. See objected producing computers.” Supplemental Reply Brief e.g., Appellants’ Record, Supplemental No. Concise Sup- Appellee’s Supplemental Brief of on Complained Statement of Matters Quash Appeal at 2872 port of Motion to B. Appeal, Exb. support implica- EDA at 5. In of this tion, point out that Appellants’ argument specious. judge during hearing noted Assuming appellees’ for the moment that that the attorneys needed to slow down so using “objection” counsel the term tran- sense, keep up could with the legal simply reporter because court the technical N.T., 3, citing Mo- objection scription. Id. at n. appellees’ counsel recalls an be- was, In its Rule objection Hearing, tions ing made does not mean the the trial court fact, Opinion, failure to invoke as- for the first time in the histo- their counsel’s appeal, On and/or definitively trial court. ry [appellants] privilege of this case sert before the production subject appeal claim that “the of the com- Inasmuch as Orders [attorney-client puters would disclose cir- not collateral in nature under the are attorney work-product] privileged case, we not have cumstances of this do opposing information to counsel.” De- jurisdiction to consider the merits of the spite discovery hearings numerous be- appeals. appeals, These consolidated court, [appellants] fore the trial never therefore, quashed. re- any

raised claims of with ¶ Appeals quashed. spect computers. to the contents of the ¶ relinquished. 27 Jurisdiction they present- ever came to closest any claim ing this court with ¶ Dissenting files a Judge BOWES general was the statement that since Opinion. con- plaintiffs did not know what was computer, may tained on the there be BOWES, BY DISSENTING OPINION privileged some material. Without ever J.: stating privileged that there was materi- grant- an order As this Court issued al, objecting entry without ever to the emergency application for ing Appellants’ orders, discovery the two and without discovery orders on supersedeas producing any privilege log, plain- ever 16, 2007,8 Appellees simul- November tiffs such claims for the raise taneously panel they informed this on appeal. first time catalog privi- advised 1925(a) Opinion at 2. Both the certi- leged materials and forward them record, recollec- fied court’s review, the issue trial court for in camera hearing, appel- tion of the motions belies moot, and presented herein has become transcript that the could implication lants’ Thus, I should be dismissed. incomplete. Keystone also Tech. See respectfully dissent. Inc., Group, supra at 1228 n. 1. Spink, supra at 280 n. We cannot estab- that an actual con- It is well-settled jurisdiction specu- lish our basis troversy every stage must exist at speculation directly lation when such con- otherwise, judicial the matter will process; tradicts the evidence of record and v. Fitz- Fitzpatrick be dismissed as moot. analysis trial court’s of this evidence. (Pa.Su- patrick, 811 A.2d Pennsylvania do not is- per.2002). ¶25 courts the “color- Appellants, who invoke advisory opinions or address purely sue determining able claim” standard for questions. Erie Insurance hypothetical underlying whether the Orders are collat- Exchange Claypoole, nature, satisfy eral in have failed (1996). In keeping they implic- due to the fact that standard enter a principles, these we should not attorney-client itly waived their claim given judgment or that cannot be Pennsylvania Rule decree privilege pursuant question presentéd through effect unless: Appellate Procedure staying proceedings and di- emergency response Appellants’ peti- curiam order tion, recting Appellants immediately take all they "to could not wherein averred discoverable, necessary steps to retrieve comply with the orders “without non-privileged from their com- attorney-client privileged docu- information disclosing puters days of the date of this opposing counsel within ments and information to Order, 11/16/07, at per order.” parties,” third this Court issued and/or materials be- dissemination of confidential repetition apt ap- to elude capable (2) attorney failed to ob- review; appellant’s to cause the pellate party a will continue decision; by discovery request trial court’s vio- prejudiced ject the to an overbroad (3) impor- only great public principle or the issue is of that lates the established Indeed, tance. Id. at 353. privilege. the the client can waive majority by cited the none of the cases bar, parties 3 In the case at both have in this case. Our holding its supports underlying that the panel informed this any attor- did not address Supreme Court ap- issue was resolved after the notice of in issues Common- ney-client privilege to peal Appellees’ was filed. See motion Clair, Pa. 326 A.2d 272 wealth v. 3; quash, Appellants’ reply at Freeman, (1974), v. Commonwealth However, rejects majority brief at 8. the (2003), v. Kelley A.2d 385 Pa. Appellants these because did assertions Mueller, (2006), A.2d 202 590 Pa. [they not “include evidence that com- analysis this of the Common- Court’s plied discovery with the within the orders] to invoke a non-existent wealth’s failure record, supplemental certified the certified privilege” “executive Commonwealth reproduced record or ... record.” 527, 605 A.2d Kauffman, Majority opinion disagree at 1228 n. 2. I (1992), 1243, 1246-1248 was dicta because view, my this assessment. these did not assert the Commonwealth (1) representations are credible because: appeal. See id. at 1248. court, pro- attorneys, as officers of the Moreover, that to the extent Kauff- making hibited from false statements of 2d, De- cited Goodrich-Amram man Court fact all of judges;9 material Discovery, section 4011 for positions and agree parties present appeal that the be- failure to claim the proposition that “a Appellees came moot when recommended [attorney-client] privilege [during pretrial challenged an in camera evaluation of the it,” that discovery] waives id. Hence, re- grant items.10 we should not the rele- misleading is statement because view because the unusual events that 4011(c) currently portion vant of section likely prompted appeal are not reads: cases, party reoccur future and neither prejudiced

will be if the is dis- right ... waive a Any party missed. fails invoke a where objection to privilege as an Furthermore, to assert the majority’s conten- Indeed, discovery request. proposed appellant tion that an cannot invoke the discovery of disclosure preclusion prevent complied 3.3(a)(1) agree Appellants have Pennsylvania parties that Rules of 9. Rule provides lawyer Conduct spirit Professional orders with the knowingly shall not "make a false statement from extracting requisite information or fail to correct of material fact to tribunal computers, di- the order their virus-infected previ- of material fact or law a false statement com- recting Appellants to the actual lawyer.” ously to the tribunal made as moot on remand. puters should be vacated States, 235 F.3d 1054 v. United See Anastasoff Herein, only explain "[t]he Cir.2000) (as (8th when appeal became moot appeal has continued is that reason that this refund, agreed issue tax case government pursuit of Appellees have not ceased in their instruc- to district court with was remanded despite computer hardware issue judg- previously-entered tions to vacate recovered, respon- receipt court’s of all trial and to government as moot in favor of ment Appellants claim in which sive documents fees). attorneys' taxpayer’s claim for reply all consider privilege.” Appellants’ brief at 8. As proceedings ground they subsequently that a invoked the attor- on the matter When In addi- privileged is automatic. ney-client privilege protect the sensitive tion, privilege may as to documents be files, objec- plaintiffs countered that all previous permitting waived act of waived, following tions been and a had documents, inspection by injecting hearing, the defendants ordered to were a privileged communication as an issue every document identified in the action, in the pleading privileged a discovery request. However, matter as a defense. because appeal, 6 On this Court reversed and attorney-client belongs remanded, finding that trial court client, only to the the client can waive ordering erred in the wholesale surrender protections. documents, including all requested privi- 2d, Depositions 9A Goodrich-Amram materials, leged as for a a sanction discov- Discovery, 4011(c):5, § Amram Commen- “(1) ery considering: violation without first added). tary (emphasis Accordingly, there severity discovery the nature and pertinent legal authority is no for the ma- (2) violation; defaulting party’s willful-

jority’s position attorney that an has who (3) faith; prejudice ness or to the bad not can prospec- consulted with his clients (4) opposing party; ability to cure tively attorney-client waive the prejudice.” Id. 1019. Consistent by agreeing to for produce certain items view, with this the McGovern Court stated discovery attorney when the or has knows part: relevant reason to believe that those items contain if While it to be seen indeed remains privileged information.11 underlying materials fall under the fact, In specifically this Court has attorney-client privi- protection discovery request held that an unopposed lege, very trial court least trump attorney-client privilege. cannot inspection must conduct an in camera Ass’n, Hospital v. Service McGovern the documents to determine this conten- (Pa.Super.2001), 785 A.2d 1012 two health clearly tion. Pa.R.C.P. 4003.1 states providers care and an individual were sued subject that provisions to the Rules for breach of contract and tortious inter- 4003.5, party may 4003.2 to “a obtain ference with contractual relations after matter, any discovery regarding agency agreement terminated an privileged, which is relevant to the sub- corporation provided managers a ject pending matter involved in the ac- programs. health insurance several (emphasis tion....” 4003.1 PaJEt.C.P. discovery defendants were served awith added). any are unaware of case We request alleg- documents that various suggests law that a trial court or- edly contained confidential information but discovery privileged der the material object request thirty within failed any a let alone without bal- days required by Pa.R.C.P. 4009.12. as sanction majority repeatedly privileged without his client’s 11. The cites to this information Carbis LLP knowledge. clearly Court’s recent decision in Id. at 576. This case is LLC, Hill, King, 930 A.2d 573 (1) Barth & distinguishable because: no confidential (Pa.Super.2007), proposition for the Appellees; have been documents sent attorney unilaterally attorney- waive the surrendering their com- claim that privilege. While Carhis Walker does puters result the future dissemination will topic, inapplica address that that decision is materials; (3) they of confidential ble it involved a scenario where here because pre- invoking the lawyer inadvertently let sent confidential vent that result. counsel, opposing thereby disclosing ter to objection no extremely Although formation. ancing. Accordingly, we are trial court was lodged hearing, at the to affirm order that com- reluctant to relin- directing Appellants aware that discovery full the information pels when quish computers might privi- cause their being sought may privileged. be We compromised; leged information objec- therefore find that failure to file however, consciously ignored the court discovery request] tions within the [to expedite the that risk in order to thirty-day period time does not automat- quite possibly punish Ap- process and ically right object. waive the failing August to honor the pellants for Id. 1018-1019. action discovery request. This analogous instant case is to Mc- have occurred. As observed should not we according- Govern and should be decided McGovern, supra, pre- a court that is Pa.R.A.P.1925(a) ly. As evidenced discovery violation should sented with opinion, the trial court irritated became produce pressure not order or Appellants when it learned that did not subject to the attor- materials that comply August an re- ney-client considering the privilege without quest computer-generated for documents violation, severity nature and and that promptly failed to inform faith, defaulting party’s willfulness or bad the court or opposing counsel that their prejudice opposing party, Thus, inoperable. were at the defaulting party’s ability preju- to cure the hearing Appellees’ October 2007 mo- dice. of these was consid- None factors tion compel discovery, the court assert- no subjudice, ered the case and there is ed that Appellants should send the com- prejudice Appellees, indication that the puters to Appellees inspection because any, by Ap- if could not have been cured “obviously good the machines were no Indeed, pellants expedient in an manner. [Appellants].” Hearing, N.T. this that parties have advised Court counsel, response, Appellants’ In underlying already been dispute has Ferris, Kenneth in” “sitting who was resolved. counsel, Henry Blunk, lead Van stated ¶ Considering the circumstances (1) that: he had been that told technicians case, law, applicable and the fact that working were problem; resolve the critical is a computers’ might hard con- drives justice system, facet of our I would hold “attorney/client tain privileged informa- Appellants are not barred from invok However, tion.” Id. at when the ing juncture, at this if this subsequently court asked how it should properly still before us. Accord Ferris, proceed, obviously Mr. who never Fowler, trak Am Appellants, inexplicably conferred with re- (“[T]he (Pa.Cmwlth.2001) defense of plied, computers.” “We untimely is not waived Id. at 13. filing objection discovery request of an to a why it remains unclear as to While timely counsel fails to raise that when represented Appellants Mr. Ferris instance, it is counsel issue. such willingly computers, would surrender their penalized, not the client who should be thing apparent: one the trial court privilege.”). who holds the requiring should not have issued an order Appel- to send the machines to lees after Mr. Ferris indicated that confidential contain in-

hard drives could notes portions made. The relevant above, following: transcripts, unequivocally set forth

Case Details

Case Name: Law Office of Douglas T. Harris v. Philadelphia Waterfront Partners, LP

Court Name: Superior Court of Pennsylvania

Date Published: Sep 22, 2008

Citation: 957 A.2d 1223

Docket Number: 2872 EDA 2007, 2873 EDA 2007

Court Abbreviation: Pa. Super. Ct.