Pennsylvania Superior Court Discusses Waiver of Attorney-Client and Work Product Privileges
The case of Carlino E. Brandywine, L.P. v. Brandywine Vill., Assoc., No. 1194 EDA 2019 (Pa. Super. July 23, 2021) involves a land dispute. Brandywine Village Associates (BVA) constructed a small shopping center, i.e., Brandywine Shopping Center. On an adjacent parcel of land, Carlino E. Brandwine, L.P. (Carlino), was attempting to develop a grocery store, a retail building and a bank pad site; however, BVA has opposed the development, which resulted in the subject litigation.
Carlino sued Brandywine and its lawyers alleging breach of contract, tortious interference with contract and abuse of process. Carlino also alleged that BVA made false and baseless statements in courts and before the Pennsylvania Department of Environmental Protection (“DEP”) with the “wrongful purpose of preventing, interfering with and delaying [Carlino’s] applications to secure approval for the proposed Carlino Shopping Center.” In answering the Complaint, BVA averred that all actions taken by BVA were taken in good faith and in reliance on the advice of counsel.
During discovery, Carlino sought production of BVA’s communications with counsel. BVA objected to the discovery requests, including a request to produce a privilege log. BVA advised the court that despite the averments in its Answer and Affirmative Defenses, BVA was not asserting reliance upon the advice of their counsel as an affirmative defense to liability in this case and have not attempted to make affirmative use of any confidential attorney-client communication or any protected attorney work product to defend against Carlino’s claims. Carlino then moved to compel production of the requested documents. The trial court determined that BVA waived attorney-client and work-product privileges with respect to communications BVA had with its lawyer by asserting an affirmative defense of reliance on advice of counsel; therefore, the court granted Carlino’s motion to compel discovery, and BVA appealed the decision to the Superior Court.
The Superior Court addressed BVA’s failure to produce a privilege log.
A privilege log provides an acceptable format to identify documents, the applicable privilege, and the basis upon which privilege is claimed. While it is true our rules do not per se require the production of a privilege log when asserting a privilege as the basis for objecting to discovery requests, see Pa.R.C.P. Nos. 4006 and 4009.12, respectively, a responding party nonetheless must state objections in a manner that meets our rule requirements. Rule 4009.12(b)(2) requires that responses to document requests be in a paragraph-by-paragraph response which shall identify all documents or things not produced or made available when because of the objection they are not within the scope of permissible discovery. Pa.R.C.P. No. 4009.12(b)(2). The rule further provides that documents or things not produced shall be identified with reasonable particularity together with the basis for non-production. Id. Production of a privilege log is the most practical way to satisfy our rule requirements.
Here, the Superior Court determined because Carlino did not ask the trial court to overrule any of BVA’s specific objections to Carlino’s definitions or instructions, including objections to producing a privilege log as requested, it was error for the trial court to hold that the failure to produce a privilege log resulted in waiver to assert the privileges. See McGovern v. Hosp. Serv. Ass’n of Northeastern Pennsylvania, 785 A.2d 1012 (Pa. Super. 2001
The purpose of the attorney-client privilege is to protect confidential communications between counsel and their clients, whereas work product protection is designed to protect against disclosure of the mental impressions and processes of an attorney acting on behalf of a client. BouSamra v. Excela Health, 210 A.3d 967, 978 (Pa. 2019). Whereas disclosure to a third party generally waives the attorney-client privilege, the same cannot be said for application of the work product doctrine because disclosure does not always undermine its purpose. Id. As the purpose of the doctrine must drive the waiver analysis, the work product doctrine is waived when the work product is shared with an adversary or disclosed in a manner that significantly increases the likelihood that an adversary or anticipated adversary will obtain it. Id. Therefore, while it is possible for the attorney-client privilege to be waived when a confidential communication is disclosed outside the attorney-client relationship, the failure to maintain strict confidentiality over work product will not result in a similar waiver if work product is disclosed in a manner not likely to reach an adversary. While the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, this should not suffice by itself to establish waiver of the work product privilege. Id.
In this case, the Court held when a party pleads certain defenses, it is understood that the party intends to rely upon those defenses at trial. Based on the plain language of BVA’s amended answer and new matter, the Court concluded that BVA indeed raised the affirmative defenses of reliance on advice of counsel and counsel’s good faith reliance on applicable law to Carlino’s causes of action. Therefore, BVA by doing so opened the door to waiver of the privileges. However, the extent of these waivers is dependent upon what BVA has placed in-issue. Thus, the Court had to determine whether the trial court erred in finding a blanket privilege waiver and ordering the wholesale production of documents that otherwise would be privileged.
Regarding the discovery of information protected by attorney-client privilege, the Court determined Carlino was entitled to discovery of those relevant and privileged documents that BVA has placed in issue because of its assertion of reliance on advice of counsel as pled in their answer and new matter; however, disclosure must be particularized and cannot be compelled in a wholesale manner. Therefore, the Court remanded the matter to the trial court so that BVA first can identify, under a useful privilege log, all documents responsive to each of Carlino’s document requests that seek attorney-client privileged materials. Thereafter, the trial court may then conduct an in-camera inspection of documents claimed to be privileged and not waived.
Regarding the discovery of information protected by work-product privilege, the Court stated “[t]he purpose of the work product doctrine is to protect [from the knowledge of opposing counsel and his or her client] the mental impressions and processes of an attorney acting on behalf of a client, regardless of whether the work product was prepared in anticipation of litigation.” BouSamra, 210 A.3d at 976, 979. The work product doctrine, however, can be waived. “[T]he work-product privilege is not absolute and items may be deemed discoverable if the ‘product’ sought becomes a relevant issue in the action.” Gocial v. Independence Blue Shield, 827 A.2d 1216, 1222 (Pa. Super. 2003).
Ultimately, the Superior Court determined because work product protection belongs to counsel, the proper inquiry on waiver does not focus upon information relied upon by the clients. Rather, the inquiry as to whether work product protection has been waived must look to counsel’s actions and the manner in which counsel shared his work product. Thus, the Court held that BVA’s advice of counsel defense did not result in a waiver of attorney work product protection.