Estate of Paterno v. National Collegiate Athletic Ass'n

J-A02016-16

J-A02017-16

2017 PA Super 247

ESTATE OF JOSEPH PATERNO; AL IN THE SUPERIOR COURT OF

CLEMENS, MEMBER OF THE BOARD OF PENNSYLVANIA

TRUSTEES OF PENNSYLVANIA STATE

UNIVERSITY, WILLIAM KENNEY, AND

JOSEPH V. PATERNO JR.(JAY), FORMER

FOOTBALL COACHES AT PENNSYLVANIA

STATE UNIVERSITY

v.

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION (NCAA), MARK EMMERT,

INDIVIDUALLY AND AS PRESIDENT OF

NCAA, AND EDWARD RAY,

INDIVIDUALLY AND AS FORMER

CHAIRMAN OF THE EXECUTIVE

COMMITTEE OF THE NCAA, AND

PENNSYLVANIA STATE UNIVERSITY

No. 877 MDA 2015

APPEAL OF: PEPPER HAMILTON, LLP

Appeal from the Order Entered May 8, 2015

In the Court of Common Pleas of Centre County

Civil Division at No: No: 2013-2082

GEORGE SCOTT PATERNO, AS DULY IN THE SUPERIOR COURT OF

APPOINTED REPRESENTATIVE OF THE PENNSYLVANIA

ESTATE AND FAMILY OF JOSEPH

PATERNO; RYAN MCCOMBIE, ANTHONY

LUBRANO, AL CLEMENS AND ADAM

TALIAFERRO, MEMBERS OF THE BOARD

OF TRUSTEES OF PENNSYLVANIA

STATE UNIVERSITY; PETER BORDI,

TERRY ENGELDER, SPENCER NILES,

AND JOHN O'DONNELL, MEMBERS OF

THE FACULTY OF PENNSYLVANIA STATE

J-A02016-16

J-A02017-16

UNIVERSITY; WILLIAM KENNEY AND

JOSEPH V. ("JAY") PATERNO, FORMER

FOOTBALL COACHES AT PENNSYLVANIA

STATE UNIVERSITY; AND ANTHONY

ADAMS, GERALD CADOGAN, SHAMAR

FINNEY, JUSTIN KURPEIKIS, RICHARD

GARDNER, JOSH GAINES,PATRICK

MAUTI, ANWAR PHILLIPS AND MICHAEL

ROBINSON, FORMER FOOTBALL PLAYERS

OF PENNSYLVANIA STATE

UNIVERSITY

Appellees

v.

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION (NCAA); MARK EMMERT,

INDIVIDUALLY AND AS PRESIDENT OF

THE NCAA; AND EDWARD RAY,

INDIVIDUALLY AND AS FORMER

CHAIRMAN OF THE EXECUTIVE

COMMITTEE OF THE NCAA, AND

THE PENNSYLVANIA STATE UNIVERSITY

Appellants No. 1709 MDA 2014

Appeal from the Order Entered September 11, 2014

In the Court of Common Pleas of Centre County

Civil Division at No: 2013-2082

THE ESTATE OF JOSEPH PATERNO; AL IN THE SUPERIOR COURT OF

CLEMENS, MEMBER OF THE BOARD OF PENNSYLVANIA

TRUSTEES OF PSU, AND WILLIAM

KENNEY AND JOSEPH V. PATERNO,

FORMER FOOTBALL COACHES AT

PENNSYLVANIA STATE UNIVERSITY

Appellees

v.

-2-

J-A02016-16

J-A02017-16

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION (NCAA); MARK EMMERT,

INDIVIDUALLY AND AS PRESIDENT OF

THE NCAA; AND EDWARD RAY,

INDIVIDUALLY AND AS FORMER

CHAIRMAN OF THE EXECUTIVE

COMMITTEE OF THE NCAA,

AND THE PENNSYLVANIA STATE

UNIVERSITY

Appellants No. 878 MDA 2015

Appeal from the Order Entered May 5, 2015

In the Court of Common Pleas of Centre County

Civil Division at No: 2013-2082

BEFORE: PANELLA, STABILE, and DUBOW, JJ.

OPINION BY STABILE, J.: FILED JULY 25, 2017

These interlocutory appeals arise from orders directing production of

documents over objections of attorney-client privilege and work product

protection. After careful review, we affirm in part, reverse in part, and

remand for further proceedings.1

The questions before us pertain to work done by Freeh Sporkin &

Sullivan, LLP (“FSS,”)2 on behalf of a Special Investigations Task Force (the

“Task Force”) created by The Pennsylvania State University (“Penn State”

____________________________________________

1

Also pending is Appellants’ application to discontinue, which we deny for

reasons stated in the main text.

2

The FSS attorneys have since joined Pepper Hamilton. The orders on

appeal were directed to Pepper Hamilton.

-3-

J-A02016-16

J-A02017-16

and, collectively with FSS, Appellants). The Task Force comprises Penn

State trustees, faculty, alumni, and students. Penn State created the Task

Force to investigate its handling of the well-publicized scandal involving

former assistant football coach Jerry Sandusky. On November 4, 2011, the

Commonwealth of Pennsylvania charged Sandusky with committing serial

sexual offenses against minor boys on Penn State’s campus. A jury found

Sandusky guilty on multiple counts and he is currently serving 30 to 60

years of incarceration.3

On July 12, 2012, FSS produced a report (the “Freeh Report”) detailing

its investigation of Penn State’s handling of the Sandusky scandal.

According to the Paterno parties4 (collectively “Plaintiffs” or “Appellees”), the

Freeh Report concluded that the late Joseph V. Paterno, former Penn State

head football coach, was aware of allegations of Sandusky’s conduct before

Sandusky retired in 1999 but failed to take action to address that conduct.

____________________________________________

3

The Commonwealth also filed charges against three high-ranking Penn

State officials. A jury convicted Penn State President Graham B. Spanier of

endangering the welfare of children (18 Pa.C.S.A. § 4304), Athletic Director

Timothy M. Curley, and Senior Vice President for Finance and Business Gary

C. Shultz, pled guilty to that offense. All three men were sentenced to terms

of prison and house arrest on June 2, 2017.

4

The Paterno parties are the estate of Joseph Paterno, Al Clemens, member

of the Board of Trustees of Pennsylvania State University, William Kenney,

and Joseph V. Paterno Jr.(Jay), former football coaches at Pennsylvania

State University.

-4-

J-A02016-16

J-A02017-16

Plaintiffs’ Second Amended Complaint, 10/13/14, at ¶ 67, 104. “According

to the [Freeh Report], Penn State officials conspired to conceal critical facts

relating to Sandusky’s abuse from authorities, the [Penn State] Board of

Trustees, the Penn State community, and the public at large. Id.

The National Collegiate Athletic Association (“NCAA”), defendant5 in

this action, adopted the Freeh Report in support of a consent decree

whereby Penn State accepted the NCAA’s imposition of sanctions for

violations of the NCAA’s constitution and bylaws. Id. at ¶¶ 88-89, 98.

According to the consent decree:

Head Football Coach Joseph V. Paterno failed to protect

against a child sexual predator harming children for over a decade,

concealed Sandusky’s activities from the [Penn State] Board of

Trustees, the University community and authorities, and allow[ed]

[Sandusky] to have continued, unrestricted and unsupervised

access to the University’s facilities and affiliation with the

University’s prominent football program.

Id. at ¶ 104a (quoting the NCAA consent decree). Likewise, the consent

decree provided that other coaches and staff “ignored red flags” of

Sandusky’s conduct. Id. at ¶ 104c (quoting the NCAA consent decree).

Plaintiffs alleged that the NCAA “knew or should have known that the Freeh

Report was an unreliable rush to judgment and that the conclusions reached

in the report were unsupported. Id. at ¶ 90. Further, Plaintiffs alleged that

____________________________________________

5

The named defendants include the NCAA, Mark Emmert, individually and

as President of NCAA, and Edward Ray, individually and as former Chairman

of the Executive Committee of the NCAA. We will refer to these parties

collectively as the “NCAA.”

-5-

J-A02016-16

J-A02017-16

the NCAA “also knew or should have known that by accepting the Freeh

Report as a basis for imposing sanctions instead of following the NCAA’s own

rules and procedures […] they would dramatically increase the publicity

given to its unreliable conclusions and effectively terminate the search for

truth.” Id.

Plaintiffs alleged various causes of action, including defamation,

commercial disparagement, breach of contract, and interference with

contractual relations. Shortly after filing suit, Plaintiffs served on FSS notice

of intent to subpoena all of FSS’s files relating to its preparation of the Freeh

Report. FSS and Penn State (the latter having been added to this action as

a nominal defendant), objected on grounds of attorney-client privilege and

work product. On September 11, 2014, the trial court overruled most of the

objections, thus requiring production of a large number of documents. On

October 8, 2014, Appellants appealed from the September 11, 2014 order

(captioned above at 1709 MDA 2014). Likewise, Appellants filed in the trial

court motions for a stay pending appeal (see Pa.R.A.P. 1732(a)) and a

protective order (see Pa.R.C.P. No. 4012). The trial court denied relief by

order of November 20, 2014. This Court affirmed the denial of the stay.

On January 22, 2015, while the appeal at number 1709 was pending,

Plaintiffs filed a motion in the trial court to enforce the subpoena. The trial

court granted that motion on May 8, 2015. The trial court reasoned that it

lacked jurisdiction to consider Appellants’ claims of privilege and work

-6-

J-A02016-16

J-A02017-16

product, as those issues were before this Court in the appeal pending at

number 1709. The trial court therefore enforced the subpoena without

considering Appellants’ objections. Appellants filed appeals from that order

(captioned above at 877 and 878 MDA 2015). This Court denied Appellants’

application for stay by order of June 19, 2015. Thus, FSS already has

produced the documents at issue in this appeal. Should Appellants succeed

in this appeal, documents will have to be returned to FSS and not used as

evidence.

This case involves several million documents. Among those are

approximately 3.5 million documents the parties refer to as “source

documents,” or documents that FSS gathered from Penn State’s servers and

records custodians. The parties generally agree that attorney-client

privilege and work product doctrine do not prevent discovery of the source

documents unless those documents divulge privileged communications. The

second category, “non-source documents” comprises documents generated

by FSS, such as notes and summaries of 430 interviews conducted by FSS

attorneys and investigators from Freeh Group International Solutions, LLC

(“FGIS”) and other internal FSS memoranda. On April 26, 2014, this Court

remanded this matter and requested further clarification of the documents at

issue, including a privilege log identifying objections to specific documents or

categories of documents. We also directed the parties to list and identify

any documents ordered to be produced over Appellants’ objections, grouping

-7-

J-A02016-16

J-A02017-16

such documents by category where practicable. Finally, we directed the trial

court to prepare an opinion explaining its reasons for overruling or granting

protection of documents.

Post-remand, the parties have significantly pared down the number of

documents still in dispute. In its opinion of August 12, 2016, the trial court

reasoned that the Task Force, not Penn State, was the client of FSS. Thus,

Penn State did not have standing to assert attorney-client privilege as to

communications between FSS and the Task Force. Trial Court Opinion,

8/12/16, at 3. Further, the trial court held that many of the non-source

documents were not discoverable because they were irrelevant to the

Plaintiffs’ causes of action:

The integral relevant issue in this case is whether Defendants

adopted the allegedly false findings of the Freeh Report either with

knowledge that the findings were false, or with reckless disregard

of the findings’ truth or falsity. […] When considering this issue in

conjunction with FSS’s attorney work product, the relevance of the

work product to Plaintiffs’ claims turns on whether FSS

communicated or shared the work product with Defendants.

Whether FSS acted with actual malice or reckless disregard for the

truth in reaching the findings in the Freeh Report is wholly

irrelevant to whether Defendants acted with said requisite state of

mind. Therefore, any attorney work product which remained

internal amongst the FSS team of attorneys is irrelevant to

Plaintiffs’ claims in this case and is not discoverable.

Id. at 8-9 (italics in original).

Finally, the trial court addressed summaries of the 430 interviews FSS

conducted. Present at each interview were the interviewee, an FSS

attorney, and an investigator from FGIS. The attorney and investigator each

-8-

J-A02016-16

J-A02017-16

took notes during the interview, and then prepared and then condensed

their notes into an agreed upon interview summary. The trial court

addressed summaries as follows:

In the case at bar, several categories of the Privilege Log

contain memoranda of interviews prepared by FSS interviewers.

These memoranda contain a confluence of the statements made by

the interviewees and the mental impressions, conclusions, and

opinions of the interviewer. The attorney work product doctrine

only applies to the interviewer’s mental impressions, conclusions

and opinions. Therefore, said memoranda are discoverable so long

as the attorney work product portions are redacted.

Id. at 10-11.

In their post-remand supplemental brief, Appellants argue that the

trial court erred in finding that Penn State was not a client of FSS.

Appellants’ Post-Remand Supplemental Brief at 9. Appellants also argue

that the trial court erred in finding “non-transcribed, non-verbatim notes of

hundreds of interviews prepared by [FSS] and members of its team, which

undisputedly were not signed or otherwise adopted by the interviewees, are

not protected from disclosure by the attorney work product doctrine[.]” Id.

at 10. Appellees filed separate briefs responding to Appellants’ arguments

and raising their own challenge to the trial court’s finding on relevancy. We

will address these issues in turn.

-9-

J-A02016-16

J-A02017-16

First, Appellants challenge the trial court’s finding that Penn State was

not the client of FSS.6 Whether attorney-client privilege protects a particular

communication is a question of law. In re Thirty-Third Statewide

Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014). Our standard of

review is de novo and our scope of review is plenary. Custom Designs &

Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 (Pa. Super. 2012).

“In Pennsylvania, the attorney-client privilege operates in a two-way fashion

to protect confidential client-to-attorney or attorney-to-client

communications made for the purpose of obtaining or providing professional

legal advice.” Id. at 376.

____________________________________________

6

Status as a client is the first of four elements that the proponent of the

privilege claim must establish:

1) The asserted holder of the privilege is or sought to

become a client.

2) The person to whom the communication was made is a

member of the bar of a court, or his subordinate.

3) 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.

4) The privilege has been claimed and is not waived by the

client.

Custom Designs, 39 A.3d at 376.

- 10 -

J-A02016-16

J-A02017-16

The party asserting privilege bears the burden of producing facts

establishing proper invocation of the privilege. Yocabet v. UPMC

Presbyterian, 119 A.3d 1012, 1019 (Pa. Super. 2015). “Once the invoking

party has made the appropriate proffer, then the burden shifts to the party

seeking disclosure to set forth facts showing that disclosure should be

compelled either because the privilege has been waived or because an

exception to the privilege applies.” Id. “Accordingly, [i]f the party asserting

the privilege does not produce sufficient facts to show that the privilege was

properly invoked, then the burden never shifts to the other party, and the

communication is not protected under attorney-client privilege.” Custom

Designs, 39 A.3d at 376. The trial court determines whether the facts

support the asserted privilege. Law Office of Douglass T. Harris, Esq. v.

Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 1231 (Pa. Super.

2008) (citing 8 Wigmore, Evidence, § 2322 (McNaughton rev. 1961)).

Appellants note that Penn State created the Task Force, and that the

Task Force has no independent legal identity and no budget of its own. The

chair of Penn State’s board of trustees—not himself a member of the Task

Force—signed the Engagement Letter on behalf of Penn State. Penn State

paid for FSS’s services, in accordance with the terms of the Engagement

Letter. Appellants also rely on a December 22, 2011 letter from Penn

State’s in-house general counsel to FSS advising FSS that Penn State’s

president, trustees, and members of the Task Force were of the opinion that

- 11 -

J-A02016-16

J-A02017-16

FSS represented Penn State. Appellants also rely on a July 22, 2012 letter

from Penn State’s outside counsel to Freeh stating that FSS represented

Penn State. In the July 22, 2012 letter, outside counsel described materials

for which Penn State would and would not waive attorney-client privilege.

For these reasons, Appellants assert that Penn State was the client.

Appellees counter that Freeh, in his deposition, testified that the Task

Force was FSS’s only client, and that FSS did not represent Penn State.

Appellees also note that Penn State’s general counsel, in her December 22,

2011 letter to FSS, referred to the Task Force as independent and distinct

from Penn State and its board of trustees.

Both parties rely on the November 18, 2011 Engagement Letter

(“Engagement Letter”), which outlines the terms of FSS’s services. We will

review that document in detail. The opening paragraph of that document

states:

We are pleased that the Board of Trustees of the

Pennsylvania State University […] on behalf of the [Task Force]

established by the Trustees […] has engaged us to represent the

[Task Force]. […] Accordingly, this is to set forth the basic

terms upon which FSS has been engaged to represent the

[Task Force], including the anticipated scope of our services and

billing policies and practices that will apply to the engagement.

Engagement Letter, 11/18/11, at page 1 (emphasis added). Paragraph one,

titled “Scope of Engagement,” provides:

FSS has been engaged to serve as independent,

external legal counsel to the [Task Force] to perform an

independent, full and complete investigation of the recently

publicized allegations of sexual abuse at the facilities and the

- 12 -

J-A02016-16

J-A02017-16

alleged failure of [Penn State] personnel to report such sexual

abuse to appropriate police and governmental authorities. The

results of FSS’s investigation will be provided in a written report to

the [Task Force] and other parties as so directed by the [Task

Force].

[…]

It is understood by FSS, the Trustees, and the [Task Force]

that FSS will act under the sole discretion of the [Task Force].

[…]

It is also understood by FSS, the Trustees and the [Task

Force] that during the course of FSS’s independent investigation

performed hereunder, FSS will immediately report any discovered

evidence of criminality to the appropriate law enforcement

authorities, and provide notice of such reporting to the [Task

Force].

[…]

FSS also will communicate regarding its independent

investigation performed hereunder with media, police agencies,

governmental authorities and agencies, and any other parties, as

directed by the [Task Force]. However, it also is understood by

FSS, the Trustees and the [Task Force] that neither the Trustees

nor the [Task Force] will interfere with FSS’s reporting of evidence

of criminality or identities of any victims of sexual crimes or

exploitation discovered throughout the course of FSS’s independent

investigation performed hereunder, as discussed in the paragraph

immediately above.

Id. at pages 1-2, ¶ 1 (emphasis added).

In a subsequent paragraph titled “Retention of Third Parties,” the

Engagement Letter provides that “For the purpose of providing legal services

to the [Task Force], FSS will retain [FGIS] to assist in this engagement.”

Id. at page 5, ¶ 5.

Paragraph six governs the confidentiality of the relationship:

- 13 -

J-A02016-16

J-A02017-16

The work and advice which is provided to the [Task

Force] under this engagement by FSS, and any third party

working on behalf of FSS to perform services in connection with

this engagement, is subject to the confidentiality and privilege

protection of the attorney-client and attorney work product

privileges, unless appropriately waived by the parties or otherwise

determined by law.

Id. at page 5, ¶ 6 (emphasis added). Paragraph 7 governs the

responsibilities of attorney and client:

FSS will provide the above-described legal services for

the [Task Force’s] benefit, for which the Trustees will be

billed in the manner set forth above. We will keep the [Task

Force] apprised of developments as necessary to perform our

services and will consult with the [Task Force] as necessary to

ensure the timely, effective, and efficient completion of our work.

Id. at pages 5-6, ¶ 7 (emphasis added).

Paragraph nine, titled “Engagement Limited to Identified Client,”

provides: “This will also confirm that, unless we otherwise agree in writing,

our engagement is solely related to the [Task Force] established by the

[Penn State] Board of Trustees and the specific matter described above.”

Id. at page 6, ¶ 9. Paragraph ten, governing termination, provides that

“Our engagement may be terminated at any time by FSS or the [Task Force]

upon written notice and, with respect to FSS, consistent with our ethical and

professional obligations.” Id. at 7, ¶ 10. Paragraph 11, regarding client

files, provides that “[i]n the course of our representation of the [Task Force],

we will maintain a file containing, for example, correspondence, pleadings,

agreements, deposition transcripts, exhibits, physical evidence, expert

reports, and other items reasonably necessary for the [Task Force’s]

- 14 -

J-A02016-16

J-A02017-16

representation[.]” Id. at 7, ¶ 11 (emphasis added). Finally, in its

concluding paragraph, the Engagement Letter states that “FSS, of course, is

delighted to be asked to provide legal services to the [Task Force], and

we are looking forward to working with the [Task Force] on this

engagement.” Id. at page 7 (emphasis added).

Freeh signed the Engagement Letter on behalf of FSS. The chair of

Penn State’s Board of Trustees signed the Engagement Letter under the

heading “Approved and Agreed to on Behalf of The Board of Trustees of the

Pennsylvania State University.” Id. at page 8. Likewise, the Task Force

chair signed the Engagement Letter under the heading “Approved and

Agreed to on Behalf of the [Task Force] Established by The Board of Trustees

of the Pennsylvania State University.” Id.

In summary, the Engagement Letter consistently draws a distinction

between Penn State’s board of trustees and the Task Force. The letter

consistently identifies the Task Force as the party for whom FSS was

performing services. Appellants do not cite any legal authority precluding an

entity such as Penn State from hiring and paying a law firm to represent a

task force of the entity’s creation.7 Nor do Appellants cite any authority

____________________________________________

7

We note that Rule of Professional Conduct 1.8(f) and explanatory

comment 11 permit compensation by a third party. Pa.R.P.C. 1.8(f). The

client must give informed consent, and there must be no “interference with

the lawyer’s independence of professional judgment or with the client-lawyer

(Footnote Continued Next Page)

- 15 -

J-A02016-16

J-A02017-16

precluding the parties from limiting the attorney-client relationship to the

law firm and the task force, if desired. Furthermore, Appellants cite no

authority to support their contention that the Task Force, in order to become

a client of FSS, needed to be a distinct legal entity. The signature on the

Engagement Letter Steve A. Garban, chair of Penn State’s board of trustees

was necessary, given that the trustees were paying FSS’s bills. We

therefore do not view Garban’s signature as “fatally inconsistent” with a

conclusion that the Task Force was the client, as Appellants claim. See

Appellants’ Supplemental Brief at 21. The signature by the Task Force chair,

Kenneth C. Frazier, on the other hand, undercuts Appellants’ argument. If

Penn State was the client, and if the Task Force had no identity distinct from

Penn State, Frazier’s signature would be superfluous. As it is, Frazier’s

signature on behalf of the Task Force is consistent with the terms of the rest

of the Engagement letter, which consistently and repeatedly identifies the

Task Force as the client.

Appellants also argue that the trial court placed undue weight on

Freeh’s testimony. Appellants claim Freeh’s testimony, coming well after the

signing of the Engagement Letter and issuance of the Freeh Report, does not

_______________________

(Footnote Continued)

relationship.” Id. Likewise Rule 5.4(c) provides that a “lawyer shall not

permit a person who recommends, employs or pays the lawyer to render

legal services for another to direct or regulate the lawyer’s professional

judgment rendering such legal services.” Pa.R.P.C. 5.4(c). See also,

Pa.R.P.C. 5.4(c), explanatory comment 2.

- 16 -

J-A02016-16

J-A02017-16

alter the circumstances of the representation. A similar criticism could be

made, however, of Appellants’ reliance on letters authored by its general

counsel and outside counsel, both of which post-date the Engagement Letter

and the commencement of FSS’s representation of the Task Force. In our

view, Freeh’s testimony is consistent with the Engagement Letter. We do

not believe the trial court overemphasized or erred in relying upon Freeh’s

testimony.

In summary, Appellants have failed to offer any authority upon which

we can conclude that the trial court erred, as a matter of law, in finding that

FSS confined its representation to the Task Force.8 We will not disturb the

trial court’s finding, supported by the record, that Penn State cannot assert

attorney-client privilege because it was not the client of FSS.9

Next, we address the parties’ challenges to the trial court’s work

product rulings. “The protection against the discovery of work product is

designed to shelter the mental processes of an attorney, providing a

____________________________________________

8

Implicitly, Appellants challenge the trial court’s findings of fact, credibility

determinations, and interpretation of the Engagement Letter. Appellants do

not cite any legal principles governing these issues. Appellants have

confined their argument to the trial court’s legal conclusion that Penn State

failed to establish that attorney-client privilege applies. We have confined

our analysis and holding accordingly.

9

We thus affirm Paragraph 1 of the trial court’s August 12, 2016 order

(appended to this opinion). In Paragraph 1, the trial court identified

categories of documents that contain unprivileged communications between

Penn State and FSS.

- 17 -

J-A02016-16

J-A02017-16

privileged area within which he can analyze and prepare his client’s case.”

Birth Ctr. v. St. Paul Companies, Inc., 727 A.2d 1144, 1165 (Pa. Super.

1999), aff'd, 787 A.2d 376 (Pa. 2001); disapproved on other grounds by

Mishoe v. Erie Ins. Co., 824 A.2d 1153 (Pa. 2003). “The underlying

purpose of the work product doctrine is to guard the mental processes of an

attorney, providing a privileged area within which he can analyze and

prepare his client’s case.” Bagwell v. Pennsylvania Dep’t of Educ., 103

A.3d 409, 415-16 (Pa. Cmwlth. Ct. 2014), appeal denied, 117 A.3d 1282

(Pa. 2015) (quoting Commonwealth v. Sandusky, 70 A.3d 886, 898 (Pa.

Super. 2013), appeal denied, 81 A.3d 77 (Pa. 2013)).

Work product Rule 4003.3 of the Rules of Civil Procedure governs work

product doctrine:

Subject to the provisions of Rules 4003.4 and 4003.5, 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. The discovery shall not include

disclosure of the mental impressions of a party’s attorney or his

or her conclusions, opinions, memoranda, notes or summaries,

legal research or legal theories. With respect to the

representative of a party other than the party’s attorney,

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.

- 18 -

J-A02016-16

J-A02017-16

Pa.R.C.P. No. 4003.3.10 Whether the trial court properly interpreted and

applied Rule 4003.3 presents a question of law. Barrick v. Holy Spirit

Hosp. of the Sisters of Christian Charity, 32 A.3d. 800, 808 (Pa. Super.

2011), aff’d, 91 A.3d 680 (Pa. 2014). Our standard of review is de novo

and our scope of review is plenary. Id.

As noted above, the trial court ordered production of some non-

verbatim interview notes and memoranda prepared by FSS attorneys and

FGIS investigators. Each interview was conducted by one FSS attorney and

one FGIS investigator. The attorneys and investigators took notes at the

interviews and synthesized their notes into an agreed-upon interview

summary. The trial court found that “[t]hese memoranda contain a

confluence of the statements made by the interviewees and the mental

impressions, conclusions, and opinions of the interviewer.” Trial Court

Opinion, 8/12/16, at 10-11. The trial court ordered the notes and

memoranda produced so long as the interviewer’s mental impressions,

conclusions, and opinions were redacted. Id.

The plain language of Rule 4003.3 states that work product applies to

a party’s attorney and other representative or agent. With respect to the

attorney, the Rule provides that “discovery shall not include disclosure of the

____________________________________________

10

Rules 4003.5 and 4003.5 are not relevant here, as they govern trial

preparation material.

- 19 -

J-A02016-16

J-A02017-16

mental impressions of a party’s attorney or his or her conclusions, opinions,

memoranda, notes or summaries, legal research or legal theories.”

Pa.R.C.P. No. 4003.3 (emphasis added).

We first turn for guidance to the explanatory comment accompanying

Rule 4003.3.

The amended Rule radically changes the prior practice as

to discovery of documents, reports and tangible things prepared

in anticipation of litigation or for trial by or for another party or

by or for that party’s representative, including his attorney,

consultant, surety, indemnitor, insurer or agent.

Former Rule 4011(d) expressly prohibited such discovery.

The amended Rule permits it, subject to the limitation that

discovery of the work product of an attorney may not include

disclosure of the mental impressions, conclusions, opinions,

memoranda, notes, legal research or legal theories of an

attorney. As to any other representative of a party, it protects

the representative’s disclosure of his mental impressions,

conclusions or opinions respecting the value or merit of a claim

or defense or respecting strategy or tactics. Memoranda or

notes made by the representative are not protected.

Pa.R.C.P. No. 4003.3, comment. The comment reinforces the protection of,

among other things, an attorney’s mental impressions, memoranda, and

notes.11

____________________________________________

11

In construing the Rules of Civil Procedure, this Court may rely on the

principles of statutory construction. Howarth v. DiGrazio, 142 A.3d 877,

880 (Pa. Super. 2016). The parties have not briefed the principles of

statutory construction. Their arguments rest on the plain language of Rule

4003.3. We confine our analysis accordingly.

- 20 -

J-A02016-16

J-A02017-16

For the policy underlying protection of an attorney’s interview notes,

Appellants rely on Upjohn Co. v. U.S., 449 U.S. 383 (1981). The Upjohn

Court noted the general prohibition12 of permitting discovery of “written

statements, private memoranda and personal recollections prepared or

formed by an adverse party’s counsel in the course of his legal duties.” Id.

at 397 (quoting Hickman v. Taylor, 329 U.S. 495, 510 (1947)). Thus, “it

is essential that a lawyer work with a certain degree of privacy.” Id. at 397-

98. Were it otherwise, the Supreme Court reasoned, “much of what is now

put down in writing would remain unwritten. An attorney’s thoughts,

heretofore inviolate, would not be his own.” Id. at 398. Further, the Court

wrote that “[f]orcing an attorney to disclose notes and memoranda of

witnesses’ oral statements is particularly disfavored because it tends to

reveal the attorney’s mental processes […] what he saw fit to write down

regarding witnesses’ remarks […] the statement would be his [the

attorney’s] language, permeated with his inferences.” Id. at 399-400

(citations omitted; brackets added in Upjohn). While Upjohn is not binding

on this Court, we find its analysis persuasive and in accord with the text of

Rule 4003.3 and its explanatory comment. Indeed, Rule 4003.3 explicitly

____________________________________________

12

Federal Rule of Civil Procedure 26(b)(3)(A)(ii) permits discovery of work

product if a party shows “substantial need” for the materials and that it

cannot, “without undue hardship, obtain their equivalent by other means.”

F.R.C.P. 26(b)(3)(A)(ii). Pennsylvania Rule 4003.3 contains no analogous

provision.

- 21 -

J-A02016-16

J-A02017-16

identifies memoranda and notes as worthy of protection because, as Upjohn

explains, notes and memoranda are highly likely to reflect an attorney’s

mental impressions, opinions, and conclusions—the other items explicitly

protected by the Rule. A contrary result would discourage written notes and

summaries such as those presently at issue. The trial court erred in

ordering Appellants to produce redacted copies of FSS attorney interview

notes and summaries. Work product doctrine protects those documents in

their entirety.

The same result does not obtain for the notes of FGIS investigators.

Concerning representatives other than the party’s attorney, the Rule

protects only “representative’s disclosure of his mental impressions,

conclusions or opinions respecting the value or merit of a claim or defense or

respecting strategy or tactics.” Pa.R.C.P. No. 4003.3. The explanatory

comment clarifies, “[m]emoranda or notes made by the representative are

not protected.” Pa.R.C.P. No. 4003.3, explanatory comment. 13 Thus, Rule

4003.3 protects FGIS investigator notes only to the extent that those notes

reflect “mental impressions, conclusions or opinions respecting the value or

____________________________________________

13

We are cognizant that explanatory comments express the opinion of the

rules drafting committee and therefore are not binding. Johnson v.

Bullock-Freeman, 61 A.3d 272, 276 (Pa. Super. 2013).

- 22 -

J-A02016-16

J-A02017-16

merit of a claim or defense or respecting strategy or tactics.” Pa.R.C.P. No.

4003.3.14

Appellees argue that work product does not protect the notes and

memoranda of the FSS attorneys and FGIS investigators because those

notes and memoranda were not prepared in anticipation of litigation. We

disagree. Rule 4003.3 permits discovery of work product, so long as the

work product does not reflect or include “mental impressions of a party’s

attorney or his or her conclusions, opinions, memoranda, notes or

summaries, legal research or legal theories.” Pa.R.C.P. No. 4003.3. Work

product that does not reflect or include these items is discoverable “even

though” prepared in anticipation of litigation. Id. Thus, the Rule does not

limit work product protection to materials prepared in anticipation. Rather,

materials prepared in anticipation are not automatically protected. Nowhere

does the Rule limit its protection of “mental impressions of a party’s attorney

____________________________________________

14

Paragraph 3 of the trial court’s August 12, 2016 order (see appendix)

identified the documents the trial court found to be discoverable over

Appellants’ work product claim. We hold that attorney interview notes are

not discoverable, even in redacted form. FGIS investigator notes are

discoverable but must be redacted insofar as they contain “mental

impressions, conclusions or opinions respecting the value or merit of a claim

or defense or respecting strategy or tactics.” Pa.R.C.P. No. 4003.3. The

interview summaries, which are an agreed-upon synthesis of the notes of

the FSS attorney and the FGIS investigator, need not be produced. Insofar

as anything reflected in those summaries is discoverable, Appellees can

glean that information from the un-redacted portions of the FGIS

investigator notes.

- 23 -

J-A02016-16

J-A02017-16

or his or her conclusions, opinions, memoranda, notes or summaries, legal

research or legal theories” to materials prepared in anticipation.

Moreover, Appellees’ reliance on federal law is misplaced. Federal

Rule 26(b)(3)(A) cabins work product protection to matters prepared in

anticipation of litigation. F.R.C.P. 26(b)(3)(A) (“Ordinarily, a party may not

discover documents and tangible things that are prepared in anticipation

of litigation [….]”) (emphasis added). As explained above, Rule 4003.3

does not similarly cabin Pennsylvania’s work product privilege. For this

reason, we believe federal cases interpreting Rule 26(b)(3)(A) are not

persuasive on this point. Appellees cite several Pennsylvania cases

(Appellees’ Opening Brief, at 13), but they are inapposite. Appellees rely on

a footnote in Commonwealth v. Williams, 86 A.3d 771, 782 n.7 (Pa.

2014), but that footnote simply cites federal cases. Moreover, the scope of

the work product privilege was not before the Williams Court. Appellees

cite a footnote in Gillard v. AIG Ins. Co., 15 A.3d 44, 59 n.16 (Pa. 2011),

but there, the Supreme Court expressly limited its holding: “Moreover,

while it is beyond the scope of this opinion to determine the precise

breadth of the privilege, we note that Rule 4003.3, on its overall terms,

manifests a particular concern with matters arising in anticipation of

litigation.” Id. (emphasis added). Indeed, the issue before the Gillard

Court was “whether, and to what degree, the attorney-client privilege

attaches to attorney-to-client communications.” Id. at

- 24 -

J-A02016-16

J-A02017-16

Our Commonwealth Court addressed this issue head on in Bagwell.

There, the document requester15 was seeking information (related to the

Sandusky scandal and the FSS investigation) from the Pennsylvania

Secretary of Education, in his capacity as an ex officio member of Penn

State’s board of trustees. Bagwell, 103 A.3d at 411. The Commonwealth

Court held that work product doctrine protects “mental impressions,

theories, notes, strategies, research and the like created by an attorney in

the course of his or her professional duties, particularly in anticipation or

prevention of litigation[.]” Id. (quoting Levy v. Senate of Pennsylvania,

94 A.3d 436 (Pa. Cmwlth. Ct. 2014) (italics added in Bagwell)). The

requester asked the Commonwealth Court to hold that work product doctrine

applies only to materials prepared in anticipation of litigation. The

Commonwealth Court declined, reasoning that Rule 4003.3’s protection of

mental impressions is unqualified. Id. at 416-17 (quoting Sedat v.

Department of Environmental Resources, 641 A.2d 1243 (Pa. Cmwlth.

Ct. 1994) (single judge opinion)). Thus, materials that contain mental

impressions are protected regardless of whether they are prepared in

anticipation of litigation. Id. at 417. In a later proceeding, the

Commonwealth court reiterated that “[p]rotection of an attorney’s mental

____________________________________________

15

The requester relied on the Right To Know Law (“RTKL”), 65 P.S.

§§ 67.101, et. seq., 2008 Pa. Laws. 6, No. 3.

- 25 -

J-A02016-16

J-A02017-16

impression is unqualified.” Bagwell v. Pennsylvania Office of Attorney

General, 116 A.3d 145, 148 (Pa. Cmwlth. Ct. 2015). The Commonwealth

Court’s decisions do not bind this Court. Nonetheless, we cite it as

persuasive authority in support of our own analysis. We reject Appellees’

assertion that work product protection is limited to materials prepared in

anticipation of litigation.

Next, we consider Appellees’ arguments challenging the trial court’s

post-remand order. The trial court ruled that various non-source documents

were not discoverable because they are not relevant to any of Appellees’

causes of action. Appellees argue the trial court erred in so doing. Before

we address this argument on its merits, we must consider Appellants’

assertion that an order denying discovery is interlocutory and not

immediately appealable.

Initially, we exercised jurisdiction over this appeal pursuant to

Pa.R.A.P. 313, which permits an interlocutory appeal from orders “separable

from and collateral to the main cause of action where the right involved is

too important to be denied review and the question presented is such that if

review is postponed until final judgment in the case, the claim will be

irreparably lost.” Pa.R.A.P. 313(b). The trial court’s order overruling

Appellants’ claims of attorney-client privilege and work product protection is

immediately appealable under Rule 313. Berkeyheiser v. A-Plus

Investigations, Inc., 936 A.2d 1117, 1124 (Pa. Super. 2007). This is so

- 26 -

J-A02016-16

J-A02017-16

because a claim of privilege is irreparably lost if a party is forced to disclose

privileged documents. Id.

As explained above, we remanded for clarification of the documents at

issue and the specific nature of Appellants’ objections. At the conclusion of

the post-remand proceedings, the trial court found that many of the

documents Appellees’ seek are irrelevant to any of Appellees’ causes of

action. The trial court’s post-remand ruling does not require disclosure of

evidence over a party’s assertion of privilege, and therefore does not

implicate the collateral order doctrine as set forth in Rule 313 and

Berkeyheiser. Appellees do not dispute that appellate review of an order

denying discovery of irrelevant material would ordinarily await an appeal

from a final order. They argue instead that immediate review of the order

denying discovery is proper in light of this Court’s remand instructions:

8. This Court shall retain jurisdiction over these appeals until

this Court resolves all remaining issues. If any issues

remain for review, this Court shall notify the parties if it

desires additional briefing on any remaining issues. It

shall not be necessary for the parties to file additional

appeals to his Court from any rulings by the trial court

under this Order.

9. The entry of this Order is without prejudice to the issues

already raised and preserved by the parties for review by

this Court at the above-consolidated appeal numbers.

Order, 4/26/16, at ¶¶ 8-9.

Prior to remand, Appellants were the appealing party, and the issues

they preserved challenged the order directing production of documents over

- 27 -

J-A02016-16

J-A02017-16

Appellants’ claims of attorney-client privilege and work-product. Our order

clarified that, given our retained jurisdiction, no further notices of appeal

would be necessary. Our order did not and could not expand the scope of

this Court’s permissible jurisdiction under Rule 313. Nor did it expand our

basis for exercising jurisdiction over this appeal in the first instance. 16 We

can retain only so much jurisdiction as we originally had.

Furthermore, we do not prejudice Appellees by declining to review the

trial court’s relevance finding on this appeal. Had the trial court ruled, prior

to remand, that some of the documents Appellee sought were irrelevant,

Appellees would have had no jurisdictional basis for obtaining an immediate

appeal. Post-remand, their situation is the same. We lack jurisdiction to

review an order denying discovery of allegedly privileged information. 17

Finally, we have before us Appellants’ applications to discontinue these

appeals. Appellants represent that on June 30, 2017, the Paterno Parties

filed a praecipe to discontinue this action in the Centre County Court of

Common Pleas. By virtue of Rule 1701(c) of the Appellate Rules of

Procedure, the trial court retained jurisdiction over the Paterno parties’

____________________________________________

16

All three of the above-captioned appeals were Appellants’ appeals from

orders that directed the disclosure of documents.

17

We therefore do not address Paragraph 2 of the trial court’s August 12,

2016 order.

- 28 -

J-A02016-16

J-A02017-16

action, exclusive of the collateral issues before us in this interlocutory

appeal. Pa.R.A.P. 1701(c). However, Rule 1973(b) provides:

If an appeal has been docketed in the appellate court, the

prothonotary or clerk of the lower court or the clerk of the

government unit shall not accept a praecipe to discontinue

the action until it has received notice from the appellate

court prothonotary or certification of counsel that all

pending appeals in the action have been discontinued.

Pa.R.A.P. 1973 (emphasis added). Thus, the Paterno Parties’

discontinuance, and any trial court order permitting a discontinuance, were a

nullity. The present discovery appeal remains within the exclusive

jurisdiction of this Court and deprives the trial court of any authority to

accept or grant a discontinuance of an action until receipt of proper notice

that all appeals pending in this Court have been discontinued. Apart from

the clear dictates of Rule 1973, to hold otherwise would create the

anomalous situation where the disposition of an appeal and the attendant

remand of the record would not be capable of returning to the action from

which they derived.

In their application, Appellants, citing Motley Crew, LLC v. Bonner

Chevrolet Co., Inc., 93 A.3d 474 (Pa. Super. 2014), appeal denied, 104

A.3d 526 (Pa. 2014), argue this Court is bound to discontinue this appeal

because there no longer is an action over which a court may exert

jurisdiction. We find Appellants’ argument misplaced. In Motley Crew, the

appellants discontinued their case in the trial court before filing an appeal.

Id. at 475. The appellants believed, incorrectly, that they could render an

- 29 -

J-A02016-16

J-A02017-16

otherwise interlocutory order final and appealable by discontinuing their

action. Id. This Court disagreed and quashed the appeal, concluding that

the appellants rendered their appeal moot by discontinuing their case

against all parties. Id. at 478. There no longer was an action from which

an appeal could be taken. Here, the interlocutory appeal was pending well

before the Paterno Parties sought to discontinue the underlying action in the

trial court. Unlike the attempted appeal in Motley Crew, the instant appeal

was viable at the time it was appealed to this Court. Once this appeal was

filed, this Court possessed jurisdiction over the interlocutory matters raised

on appeal to the exclusion of the trial court. The Paterno Parties could not

divest this Court of jurisdiction by attempting to discontinue their action in

the trial court while the matter was still pending in this Court. Motley Crew

therefore, does not govern the jurisdictional issue presently before this

Court.

We now must decide whether to grant Appellants’ application to

discontinue this appeal, despite the substantial time and resources this Court

has invested in reviewing and deciding this matter. Rule 1973 permits an

appellant to “discontinue an appeal or other matter as to all appellees as a

matter of course until 14 days after the date on which the appellee’s

principal brief is due, or thereafter by leave of court upon application.”

Pa.R.A.P. 1973(a). Case law on this Rule is sparse. However, in Marino by

Marino v. Marino, 601 A.2d 1240 (Pa. Super. 1992), this Court declined to

- 30 -

J-A02016-16

J-A02017-16

allow the appellant to discontinue after oral argument occurred. This Court

noted that the appellant allowed the case to proceed through extensive

briefing, application of the machinery of this Court and, finally, oral

argument before requesting a discontinuance. In declining to permit the

discontinuance, we stated “[w]e will not allow a litigant to avail himself the

full process of the court, and then permit that litigant to remove the case

from the court’s jurisdiction at the very last possible moment.” Id. at 1243.

See also, Levine v. Levine, 520 A.2nd 466 (Pa. Super. 1987) (petition to

discontinue an appeal denied when filed subsequent to argument and prior

to the filing of the appellate court’s opinion and order), Lowery v. East

Pike Lynn Township, 599 A.2d 271 (Pa. Cmwlth. 1991), (discontinuance

denied when subsequent to argument appellant sought permission to

discontinue an appeal but failed to state with particularity the grounds upon

which the request was based).

Instantly, this Court has devoted considerable time and resources to

this appeal, including a detailed remand for clarification of the issues before

us. Moreover, the issues we have addressed are of significance to the entire

bench and bar. Because the panel has twice heard argument and reviewed

two sets of briefs (pre- and post-remand), and because the panel has

reached agreement on the merits, we deny the application to discontinue.

- 31 -

J-A02016-16

J-A02017-16

For all of the foregoing reasons, we affirm the trial court’s order in

part, reverse in part, and remand for further proceedings in accordance with

this opinion.

Order affirmed in part and reversed in part. Case remanded.

Applications denied. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2017

- 32 -

. _,,._ .... ,, .. _ ...

Circulated 06/30/2017 03:09 PM

Accordingly. the Court enters the following Order:

ORDER

AND NOW, this __ ) day of~

A¥, {I2016,

s+ .

the Court hereby ORDERS:

I) '

The following categories of the Privilege Log are discoverable as they contain

unprivileged communications:

a. Category I la. Substantive communications between members of the Freeh Team

and members of Penn State's Board of Trustees ("BOT'') or Special Investigative

Task Force ("SITF") that are within the scope of 42 Pa.C.S. § 5928

i. Insofar as said communications were made to non-members of the SITF.

b. Category 12 a. Communications between members of the Freeh Team and other

attorneys for PSU (e.g., F. Guadagnino, C. Baldwin. L. Davis, D. Walworth, J.

O'Dea) that are within the scope of 42 Pa.C.S. § 5928

c. Category J 2b. Documents containing internal discussions among members of the

Freeh Team re: communications between members of the Freeh Team and other

attorneys for PSU «.s- F. Guadagnino, C. Baldwin, L. Davis, D. Walworth. J.

O'Dea) that are within the scope of 42 Pa.C.S. § 5928

i. Insofar as said discussions reflect the substantive material of said

communications.

d. Category 13. Documents containing internal discussions among members of the

Freeh Team re: communications with third parties (e.g., OAG, NCAA, Big Ten)

i, Insofar as said discussions reflect the substantive material of said

communications.

12

2) The following categories of the Privilege Log are undiscoverable as they contain

irrelevant material:

a. Category 1. Documents containing internal discussions among members of the

"Freeh Team" (Freeh Sporkin & Sullivan, Freeh Group International Solution,

Pepper Hamilton) re: interim recommendations provided to PSU in February 2012

b. Category 2a. Draft of the Freeh Report or individual chapters thereof

c. Category 2b. Documents containing internal discussions among members of the

Freeh Team re: draft chapters, possible findings, possible recommendations

d. Category 3a. Drafts of chapters/sections that were not included in the final Freeh

Report

e. Category 3b. Documents containing internal discussions among members of the

Freeh Team re: drafts of chapters/sections that were not included in the final

Freeh Report

f. Category 4. Drafts of and documents containing internal discussions among

members of the Freeh Team re: press release/L. Freeh remarks upon issuance of

Freeh Report

g. Category 5. Legal research memoranda, incJuding discussion or analysis in

preparation for drafting

h. Category 6. Documents containing internal discussions among members of the

Freeh Team re: the plan for the investigation/the progress thereof

1. Category 7b. Drafts, documents containing internal discussions among members

of the Freeh Team, comments, summaries re: memos of interviews cited in the

Freeh Report-then-current PSU employees, trustees, emeritus trustees

13

J. Category Rb. Drafts, documents containing internal discussions among members

of the Freeh Team, comments, summaries re: memos of interviews cited in the

Freeh Report-all others

k. Category Sb, Drafts, documents containing internal discussions among members

of the Freeh Team, comments, summaries re: memos of interviews cited in the

Freeh Report-all others

I. Category 9b. Drafts, documents containing internal discussions among members

of the Freeh Team, comments, summaries re: memos of interviews not cited in the

Freeh Report-then-current PSU employees, trustees, emeritus trustees

m. Category 1 Ob. Drafts, documents containing internal discussions among members

of the Freeh Team, comments, summaries re; memos of interviews not cited in the

Freeh Report-all others

n. Category 11 b. Documents containing internal discussions among members of the

Freeh Team re: Substantive communications between members of the Freeh Team

and members of Penn State's Board of Trustees ("BOT") or Special Investigative

Task Force ("SJTF") that are within the scope of 42 Pa.C.S. § 5928

3) TI1e following categories of the Privilege Log are partially discoverable:

a. Category Te. Memos of interviews cited in the Freeh Report-then-current PSU

employees, trustees, emeritus trustees

b. Category 8a. Memos of interviews cited in the Freeh Report-all others

c. Category 9a. Memos of interviews not cited in the Freeh Report-then-current

PSU employees, trustees, emeritus trustees

d. Category l Oa, Memos of interviews not cited in the Freeh Report-all others

14

4) All of the Court's discovery findings contained in this Order are to be interpreted in

collaboration with the findings in the attached Opinion.

; John . Leete, Senior Judge

\~pee ally Presiding

15