Lead Opinion
AND NOW, this 29th day of January, 2010, the January 4, 2010 Resubmission Order is hereby VACATED. The Court being equally divided, the order of the Superior Court is AFFIRMED.
Justice EAKIN files an Opinion in Support of Affirmance, which is joined by Justice BAER.
Justice SAYLOR files an Opinion in Support of Reversal, which is joined by Chief Justice CASTILLE.
Justice TODD and Justice McCAFFERY did not participate in the consideration or decision of this matter.
Addendum
Appellants, Nationwide Mutual Insurance Company, et al., sued several former agents and their respective insurance agencies, collectively appellees, for breach of contract and intentional interference with contractual relations. Appellants asserted appellees accessed confidential policyholder information on appellants' computer network and provided the information to competitors upon leaving appellants' employ. Appellees argued they were merely participating in permissible post-termination competition, and appellants did not have any proprietary interest in the information. On this basis, appellees counterclaimed, contending appellants brought suit in bad faith. A bench trial ensued. *470
During trial, appellees' counsel questioned appellants' former president regarding several documents appellants produced during discovery, including Document 529, which they sought to introduce to support their counterclaim. Appellants contended the attorney-client privilege protected Document 529, and only disclosed its recipient list, date, and subject line; they redacted the substantive content. The privileged nature of Document 529 is the issue underlying this appeal; it was filed under seal and remains sealed.
An attorney from appellants' general counsel authored Document 529 and sent it to 15 of appellants' employees, including officers, managers, and three other attorneys. Generally, Document 529 contains this counsel's assessment of the agent defections and appellants' strategy underlying the lawsuits against its former agents. It further states appellants cannot reasonably expect the lawsuits to succeed, and states the "primary purpose" of the litigation is to send a message to current employees contemplating defection.
The trial court held an in camera hearing to determine whether the attorney-client privilege applied to Document 529. Appellees argued appellants waived any privilege when they disclosed Documents 314 and 395, also regarding agent defections. Like Document 529, Document 314 was authored by an attorney from appellants' general counsel office; it outlined why appellants severed their relationship with certain agents and noted the necessity of obtaining information from defecting agents in order to consider appellants' legal options against them and their new employers. It was addressed to seven of appellants' employees, including two other attorneys in appellants' general counsel office. Document 395 was authored by appellants' agency administration director. It set forth additions and changes to the "Reflex Action Plan," appellants' policy for dealing with agent defections, and was sent to 35 of appellants' employees and officers.
The trial court held the voluntary disclosure of Documents 314 and 395 waived the attorney-client privilege with respect to Document 529. It determined appellants used the privilege to their advantage by producing communications in support of *471 their position, but withheld Document 529 as privileged because it did not support their position; the court stated "the attorney-client privilege cannot be used as both a shield and a sword." Trial Court Opinion, 2/16/05, at 4.
Appellants appealed and requested a stay, which the trial court granted. The Superior Court granted appellees' motion to quash the appeal for lack of jurisdiction. By per curiam order, this Court granted review, vacated the Superior Court's order, and remanded to the Superior Court for further proceedings. Nationwide Mutual Insurance Company v.Fleming,
The Superior Court affirmed the trial court's decision regarding Document 529 on alternative grounds. Nationwide Mutual Insurance Companyv. Fleming,
The court initially set forth Pennsylvania's two-part inquiry for determining whether the attorney-client privilege applies to preclude disclosure: whether the privilege applies to a communication, and if it does, whether client waiver or an exception applies to overcome the privilege and allow disclosure. Id., at 1265-66. The Superior Court also held the client can waive the privilege by disclosing the communication at issue to a third party. Id., at 1265. Additionally, federal decisions have held that when a communication protected by the privilege is voluntarily disclosed, the privilege is waived "for all communications pertaining to the same subject matter." Id. (emphasis in original). *472
The court noted Document 529 was a communication from counsel to a corporate client, addressing agent defections. Since the privilege only protects attorney-to-client communications containing and revealing confidential client-to-attorney communications, and Document 529 neither contained nor revealed such communications, the court concluded it did not satisfy the requirements for the privilege's protection. Id., at 1268.
We granted allowance of appeal on the following question:
Nationwide Mutual Insurance Company v. Fleming,Whether the Superior Court erred as a matter of law in holding that the attorney-client privilege did not apply to a confidential memorandum written by [appellants]' in-house senior counsel to its senior executives and attorneys which related to pending and future litigation and reflects confidential information previously shared by the client with the attorney, as well as the attorney's legal advice?
Appellants argue the Superior Court's holding chills, if not negates, the attorney-client privilege's purpose — to foster confidence and dialogue between attorney and client to benefit the administration of justice, citing In re: Investigating Grand Jury of Philadelphia CountyNo. 88-00-3503,
Appellees argue the Superior Court's holding correctly applied § 5928 and Pennsylvania's case law. Appellees first assert Document 529 does not contain or reveal confidential client-to-attorney communications, but contains only legal advice. If this document is found to be privileged, they contend appellants waived the privilege by selectively disclosing similar subject matter in an attempt to gain a tactical advantage. *474
Appellees cite Murray v. Gemplus International,
The purpose of the attorney-client privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Company v. United States,
Pennsylvania codified the privilege in 1887. See Act of May 23, 1887, P.L. 158, § 5d (formerly 28 P.S. § 321). This privilege statute was reenacted in 1976 without substantive changes and states, "In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client."
"[O]nce the attorney-client communications have been disclosed to a third party, the privilege is deemed waived." Joe v. Prison HealthServices, Inc.,
The trial court also relied on Murray, a United States District Court decision from the Eastern District of Pennsylvania, holding the defendant waived its attorney-client privilege as to intentionally disclosed documents and their subject matter. Murray, at 367. The Murray court noted the defendant "seems to have produced only the documents that are most beneficial to its defense. . . ." Id., at 366. Murray found "the argument that when one party intentionally discloses privileged material with the aim, in whole or in part, of furthering that party's case, the party waives its attorney-client privilege with respect to the subject-matter of the disclosed communications" persuasive. Id., at 367.
The reasoning in Murray and Minatronics is instructive. Appellants never alleged Documents 314 and 395 are privileged or were unintentionally disclosed. Rather, appellants claim Documents 314 and 395 are business communications *476 which do not contain confidential communications made in connection with providing legal services or advice. Read together, however, Documents 314, 395, and 529 contain the same subject matter — appellants' response to agent defections. Document 529 contains counsel's opinion-based outline regarding the ongoing activities for dealing with the defections, specifically, litigation efforts in Pennsylvania and New York. In Document 529, counsel states the litigation's primary purpose — to send a message to current employees contemplating defection — and concedes the likelihood of receiving a damages award is remote. Counsel notes his office's participation in modifying the Reflex Action Plan, and suggests edits for appellants' no-compete contract.
Like Document 529, Document 314 was authored by an attorney in appellants' general counsel office and the words "privileged and confidential" appear in its heading. Documents 314 and 529 contain counsel's understanding of the agent defections. Like Document 529, Document 395 discusses the Reflex Action Plan. Document 395 explains modifications to the Reflex Action Plan in order to efficiently deal with a large agent defection, a product of counsel's advice and input, as noted by counsel in Document 529.
Thus, the disclosure of Documents 314 and 395 form the basis of subject matter waiver of the attorney-client privilege regarding Document 529, the scope of which extends to Document 529 because it contains the same subject matter. What distinguishes Document 529 from Documents 314 and 395 is counsel's unflattering concessions regarding the litigation's purpose and prospect of succeeding. As in Murray, appellants seem to have produced only the documents beneficial to their case by disclosing Documents 314 and 395, and withholding Document 529 based on its privileged nature. I believe appellants waived the attorney-client privilege with respect to the subject of agent defections upon disclosing Documents 314 and 395, and cannot claim the privilege applies to a document containing the same subject matter, as well as potentially *477 damaging admissions. Because I conclude this matter turns on waiver, I would decline to address the merits.
Justice BAER joins this Opinion in Support of Affirmance.
I respectfully differ with the determination of the Justices favoring affirmance that, because Appellants voluntarily disclosed Documents 314 and 395, they waived the attorney-client privilege with respect to Document 529. See Opinion in Support of Affirmance, at 69-70.
As a preliminary matter, I recognize that this case presents a threshold issue of first impression, specifically, whether the same subject matter waiver doctrine should be adopted by this Court, as it has been in the federal arena. See Fed.R.Evid.
Applying such a subject matter litmus, it seems that Appellants have not waived the attorney-client privilege with respect to Document 529, because Documents 314 and 395, which were disclosed, do not appear to contain the same subject matter as Document 529. As a general principle, when assessing whether a party has implicitly waived the attorney-client privilege,
In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.),we start with the unarguable proposition that the attorney-client privilege is highly valued. Accordingly, courts should be cautious about finding implied waivers. Claims of implied *478 waiver must be evaluated in light of principles of logic and fairness. That evaluation demands a fastidious sifting of the facts and a careful weighing of the circumstances. Considering the need for this precise, fact-specific [examination], it is not surprising that the case law reveals few genuine instances of implied waiver.
Facially, Documents 314, 395, and 529 pertain to the "same subject matter," in the broadest sense of the phrase, as they all deal with some aspect of agent defections. See Opinion in Support of Affirmance, at 69-70. Document 395 describes the Reflex Action Plan (the practices that Appellants' agencies should follow when agents defect), Document 314 includes counsel's understanding regarding the defection of certain agents, and Document 529 summarizes the legal actions taken by Appellants concerning agent defections. See R.R. 31a-62a.
However, a closer examination of the communications highlights their differences. Document 395 is a comprehensive business manual detailing the various practices that should be applied when dealing with defecting agents. See id. at 32a-62a. Document 314 is a one-page e-mail drafted by an in-house attorney that specifies, by way of four bullet points, his understanding of the defection of four agents in Pennsylvania. See id. at 31a. Notably, Document 314 states, inter alia, that, "[O]ur office will begin assessing and preparing to execute our legal options, both against the agents and possibly the companies they are moving to, and will advise management of those options for a decision." R.R. at 31a.
By contrast, although it is also written by in-house counsel, Document 529 describes, among other things, the present litigation in several states involving Appellants, their former agents, and their new companies. Namely, it discusses the nature of these suits, the money damages sought, the purpose behind the litigation, Appellants' likelihood of success, and the other remedies available to Appellants against defecting agents. It also includes counsel's recommendations regarding *479 Appellants' use of specific contract provisions, as well as the possibility of filing complaints with the insurance departments of certain states. Accordingly, given the principle that courts should be cautious in finding an implied waiver of the attorney-client privilege, and the contents of the communications, it seems that Appellants did not waive the attorney-client privilege with respect to Document 529 by disclosing Documents 314 and 395.
In addressing the scope of the attorney-client privilege, I agree with the Justices favoring affirmance that Document 529 reveals confidential client communications. See Opinion in Support of Affirmance, at 68-69. For example, in the opening passage of the memorandum, the in-house-attorney author relates the collective knowledge held by management and in-house counsel regarding the operational impact of agent defections and a business-related judgment, which apparently had been made concerning the necessity of all reasonably possible responsive action. This passage both reveals information apparently communicated by management and, more generally, reflects in-house counsel's knowledge apparently derived from familiarity with business aspects. The memorandum proceeds to detail strategies that appear to reflect prior decisions made by management upon legal consultation, rather than pure legal advice.
I agree with amici curiae, The Association of Corporate Counsel, Pennsylvania Bar Association, Philadelphia Bar Association, Chamber of Commerce of the United States of America, and Pennsylvania Chamber of Business and Industry, that Document 529 exemplifies the substantial difficulty with a narrow approach to the attorney-client privilege rigidly centered on the identification of specific client communications, in that attorney advice and client input are often inextricably intermixed. See Brief for Amici The Ass'n of Corporate Counsel, et al. at 20 ("[T]he communication clearly was made for the purpose of providing legal advice and necessarily draws on, and cannot be separated from[,] the Appellants' communications with counsel. If analysis and legal opinions such as that expressed by counsel in Document 529 were not *480 deemed privileged, in-house counsel would be prevented from effectively performing the professional duties for which they were hired and their clients would not be afforded the protection of lawyer-client confidentiality that they have a right to expect.").2 As succinctly explained by amici curiae Energy Association of Pennsylvania and Pennsylvania Telephone Association:
*481[Many business enterprises] conduct their businesses in highly regulated environments, and they rely on their counsel — particularly those in their own legal departments — to monitor changes in statutes and regulations and judicial and agency interpretations of the law and then to advise corporate managers about those changes and how corporations should respond to them. They likewise rely on their in-house lawyers to serve as ongoing monitors of corporate compliance with the law. The lawyers who regularly serve the Amici Associations' members, especially the counsel who are full-time employees, are exposed to a continuous stream of client communications (many of which are clearly confidential client communications in the traditional sense). These client communications are not only oral and written, but are observational as well. A business that brings a lawyer inside its operations does so with the expectation that the lawyer will observe its operations, so that the lawyer can proactively render advice without waiting for a formal, discrete request. Providing the opportunity for such observation is a form of client communication to the lawyer and is, in essence, a standing request for legal advice. The lawyer's advice, in turn, is necessarily based on the totality of client communications.
To disclose the lawyer's advice is necessarily to disclose something about the operation of the client's business that was communicated to the lawyer through various media, including the lawyer's privileged observations. . . .
The Superior Court's holding is based on a narrow, formalistic view of attorney/client communications that is unrealistic. It fails to account for the full panoply of responsibilities lawyers — particularly "in-house" lawyers — have to counsel their corporate clients about an increasingly broad array of ever-changing legal requirements. The Superior Court's holding, if not reversed, is likely to create unnecessary impediments to the counseling of clients and could undermine one of the important goals of the privilege: frank communication to aid in compliance with the law and otherwise to provide necessary legal representation. Because businesses must operate in an increasingly complex legal environment, a closer, rather than more formal and distant relationship should be encouraged between client and counsel. A reliably confidential relationship between counsel and client is needed more than ever for companies to operate as the good citizens the people of the Commonwealth expect them to be.
Brief for Amici Energy Ass'n of Pa. and Pa. Tel. Ass'n at 1-3.3
According to the above amici, the Superior Court's opinion "poses inordinate practical difficulties" that make it administratively *482
and judicially unworkable. Brief for Amici The Ass'n of Corporate Counsel, et al. at 15 (quoting Spectrum Sys. Int'l Corp. v. Chem. Bank,
The practical difficulties of determining when a lawyer's communications incorporate or otherwise tacitly refer to a client's communications "lead[s] to uncertainty as to when the privilege will apply." [LTV Secs. Litig.,
]. Yet, "if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected." Upjohn [Co. v. United States], 89 F.R.D. at 603449 U.S. [383 ,] 392 [, 101 S.Ct. 677 ] (1981). The Superior Court's holding will reduce Pennsylvania's attorneys to guessing when their own legal advice may be privileged, leaves clients uncertain as to when their lawyers' communications are confidential, and, consequently, will significantly disrupt the free and candid exchange of information between attorneys and clients. "An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all." Id. at 393 [ 66 L.Ed.2d 584 ]. 101 S.Ct. 677
Brief for Amici The Ass'n of Corporate Counsel, et al. at 16.
While I acknowledge that the core concern underlying the attorney-client privilege is the protection of client communications, due to the unavoidable intertwining of such communication and responsive advice, I would remain with the pragmatic approach reflected in Nat'lBank of West Grove v. Earle,
For the above reasons, I would reverse the order of the Superior Court.
Chief Justice CASTILLE joins this Opinion in Support of Reversal.
(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, . . . if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.
Pa. Const. art.
That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.