The Pennsylvania Superior Court Reviews Applicability of Attorney Work Product and Attorney Client Privilege in Wrongful Death Matter

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In King v. Kappa Sigma Fraternity, 2025 PA Super 8 (January 13, 2025), the Superior Court affirmed a trial court’s determination that the Defendants failed to meet their burden to demonstrate that interview notes taken following a student’s death allegedly arising out of a sorority party where the decedent became intoxicated was not protected by attorney work product or attorney-client privilege.

Justin King was a freshman at Bloomsburg University when he was found dead after attending a party hosted by the Beta Nu Chapter of the Alpha Sigma Tau Sorority (“AST”).  Plaintiff Carol King, the Administrator of Justin’s estate sued AST, and several of its members, alleging AST members improperly urged Justin to drink several highly alcoholic beverages, which caused Justin to fall down a steep slope, resulting in fatal injuries.

AST’s representatives interviewed its members who were present at the party in the presence of their attorneys and generated handwritten notes. The Plaintiff moved the court to compel production of the notes, which AST objected to on the basis of work-product and attorney-client privilege. AST produced the notes to the Court, arguing they were the work product of its lead counsel, John J. Delany, III, who was present at the interviews.   In an affidavit, another attorney representing AST (Michael Logue) averred that Pages 1 to 45 of the notes were written by AST’s chief executive officer (CEO), James Paponetti; Pages 46 and 47 were written by AST’s chief operating officer (COO), Angie Bong; and Page 48 was a sign-in sheet created to help Mr. Delany to keep track of who had been interviewed.

According to the affidavit, “Mr. Delany was present [when those notes were written] to provide [AST] with advice and guidance on the issue of why the Beta Nu chapter at Bloomsburg University was under interim suspension, when the interviews in question took place.”    The verification did not state whether the notes were conveyed to Mr. Delany, or whether they were transmitted/communicated to anyone other than AST’s attorneys.

After an in camera review of the notes, the trial court rejected AST’s invocation of the attorney work product doctrine because there was no indication that the notes were prepared by or at the request of Mr. Delany.  Instead, the notes were written by AST’s CEO and COO, and the content of their writings was merely a factual summary of what the interviewees had stated.  The trial court also ruled that AST’s attorney-client privilege argument was unavailing because AST failed to establish that the notes contained any private communication between AST and its counsel which related to facts concerning AST’s legal defense against Plaintiff’s potential claims.

Rule 4003.3 provides that a party “may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. Pa.R.C.P. 4003.3.  However, the disclosed material “shall not include . . . the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” Id.   The doctrine extends – to a lesser degree – to material prepared by representatives of a party other than the party’s counsel.  As to such a person, “discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.” Id. Thus, while the “notes or summaries” of a party’s attorney may be absolutely privileged under Pa.R.C.P. 4003.3, the same is not true for those created by a party’s non-attorney representatives.

For the attorney-client privilege to apply the following elements must be established:

• The asserted holder of the privilege is or sought to become a client.
• The person to whom the communication was made is a member of the bar of a court or his subordinate.
• The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
• The privilege has been claimed and is not waived by the client.

Ford-Bey v. Pro. Anesthesia Servs. Of N. Am., LLC., 229 A.3d 984, 99091 (Pa. Super. 2020).

In this instance, the Court affirmed the trial court’s determination that AST failed to carry its burden of establishing the facts needed to invoke the work product doctrine because Mr. Delany’s role in the creation of the notes was not evident from the notes, or from any other record evidence. Moreover, the notes did not reflect any impressions of the AST representatives who wrote them. The Court also held the notes were not privileged communications made between AST and its counsel.  Instead, the Court found the facts asserted by AST established the communications were made by and in the presence of independent third parties (Beta Nu members) to AST’s representatives (AST’s CEO, COO, and lead counsel), and that counsel was not informed of any confidential information through AST’s redacted interview notes.

The Superior Court’s opinion in King v. Kappa Sigma Fraternity, 2025 PA Super 8 (January 13, 2025) can be accessed here.