Knopick, N. v. Boyle, D. and Boyle Litigation

J-A20003-17

2018 PA Super 140

NICHOLAS KNOPICK : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

v. :

:

DENNIS BOYLE AND BOYLE :

LITIGATION :

:

Appellant : No. 99 MDA 2017

Appeal from the Order Entered December 29, 2016

In the Court of Common Pleas of Cumberland County

Civil Division at No(s): 2014-06697

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

OPINION BY GANTMAN, P.J.: FILED MAY 30, 2018

Dennis Boyle and Boyle Litigation (collectively “Appellant”), appeal

from an interlocutory discovery order, entered in the Cumberland County

Court of Common Pleas Civil Division, which granted Appellee’s motion to

compel disclosure of certain electronic documents, over Appellant’s objection

that the documents are protected by the attorney-client privilege. For the

reasons that follow, we affirm.

The relevant facts and procedural history of this appeal are as follows.

Appellee sued Appellant in 2014 for legal malpractice sounding in breach of

contract, negligence, fraud, and conversion, based on allegations that

Appellant comingled trust account funds with operating funds to pay firm

expenses. During discovery in the present malpractice case, Appellee sent

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notice to a non-party, Donald Sherman, for a videotape deposition, along

with a subpoena for certain documents from his personal email account.

[Mr.] Sherman is a former non-attorney employee of

[Appellant]. One of his duties was to reconcile the

attorney trust account. Sometime in November of 2012,

Mr. Sherman became concerned about possible issues with

the account. As a result, he created a list of those

concerns and emailed them to himself. He used his

personal email account to both send and receive the list.

He eventually met with an attorney, who was not of Boyle

Litigation. He also met with a second lawyer, who was

employed by Boyle Litigation, on a later occasion.

During the deposition of Mr. Sherman, [Appellee] sought

the November 2012 email memorializing the concerns

regarding the trust account. [Appellant’s] Attorney

represented Mr. Sherman at the deposition. He took the

position that the email was subject to attorney-client

privilege. Thereafter, [Appellee] filed a Motion to Compel.

After hearing argument, [the trial court was] satisfied that

the email was not subject to attorney-client privilege.

Consequently, [the trial court] ordered [Appellant] [on

December 29, 2016,] to produce it.[1]

[Appellant]’s concise statement of [errors] complained of

on appeal alleges that [the trial court] erred in 1) holding

that the email in question is not subject to the attorney-

client privilege; 2) failing to perform an in-camera

inspection of the email; and 3) ordering the production of

a document that is the property of a non-party.

(Trial Court Opinion, filed March 22, 2017, at 1-2) (internal citations

omitted).

Appellant raises the following issues for our review:

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1 Appellant filed a notice of appeal on January 12, 2017. Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.

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DID THE TRIAL COURT ERR AND INCORRECTLY

INTERPRET/APPLY THE ATTORNEY-CLIENT PRIVILEGE BY

ORDERING THE PRODUCTION OF NOTES THAT WERE

PREPARED BY A CLIENT IN ANTICIPATION OF A MEETING

WITH HIS ATTORNEY, CONTAINING THE ISSUES THE

CLIENT WISHED TO DISCUSS WITH HIS ATTORNEY, SO

THE CLIENT COULD RECOLLECT AND CONVEY THOSE

ISSUES TO HIS ATTORNEY DURING THE ATTORNEY-

CLIENT MEETING?

DID THE TRIAL COURT ERR BY HOLDING THAT THE NOTES

IN QUESTION WERE NOT SUBJECT TO THE ATTORNEY-

CLIENT PRIVILEGE WITHOUT FIRST ORDERING OR

PERFORMING ANY INSPECTION OF THE NOTES, DESPITE A

PARTY’S REQUEST FOR IN CAMERA INSPECTION OF THE

NOTES?

DID THE TRIAL COURT ERR BY ORDERING THE

PRODUCTION OF THE NOTES IN QUESTION DESPITE THE

FACT THAT (A) [APPELLEE’S] MOTION TO COMPEL WAS

DIRECTED TO AND SOUGHT RELIEF FROM ONLY

[APPELLANTS], RATHER THAN NON-PARTY DONALD

SHERMAN, AND (B) THE NOTES IN QUESTION WERE THE

PROPERTY OF ONLY NON-PARTY SHERMAN?

(Appellant’s Brief at 4).

As a prefatory matter, Appellee has filed a motion to quash this appeal

as interlocutory and unappealable. Specifically, Appellee contends (a)

Appellant failed to make a colorable claim of attorney-client privilege, (b)

Appellant does not own the privilege asserted, and (c) the subject ruling

does not qualify for review under the collateral order doctrine. For these

reasons, Appellee concludes this Court should quash the appeal. We

disagree.

In this regard, “[T]he appealability of an order directly implicates the

jurisdiction of the court asked to review the order.” In re Estate of

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Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009).

“Accordingly, this Court has the power to inquire at any time, sua sponte,

whether an order is appealable.” Id.; Stanton v. Lackawanna Energy,

Ltd., 915 A.2d 668, 673 (Pa.Super. 2007). As a general rule:

[T]his Court will not provide interim supervision of

discovery proceedings conducted in connection with

litigation pending in the several trial courts. In the

absence of unusual circumstances, we will not review

discovery or sanction orders prior to a final judgment in

the main action.

Robec, Inc. v. Poul, 681 A.2d 809, 811 (Pa.Super. 1996) (quoting

McManus v. Chubb Group of Ins. Companies, 493 A.2d 84, 87

(Pa.Super. 1985)). See, e.g., Harrison v. Hayes, 870 A.2d 326 (Pa.Super.

2005), appeal denied, 584 Pa. 708, 885 A.2d 42 (2005) (quashing appeals

of three interlocutory orders because (a) orders involved did not seek

private information; they sought only general information about common

policies, procedures, and practices involved in credentialing physicians at

defendant hospital; information sought was important only to parties to

litigation and did not concern issues of public policy or seek disclosure of

privileged information; and (b) defendant hospital had no standing to object

to subpoena directed to non-party hospital on ground of privilege because

only non-party hospital could assert any alleged privilege) .

Nevertheless, “A non-final order may be reviewed if it is separable

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

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

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

irreparably lost.” Leber v. Stretton, 928 A.2d 262, 265 (Pa.Super. 2007),

appeal denied, 596 Pa. 733, 945 A.2d 172 (2008) (citing Pa.R.A.P. 313

(governing collateral orders)). See, e.g., Ben v. Schwartz, 556 Pa. 475,

729 A.2d 547 (1999) (allowing appeal from discovery order compelling

production of putatively privileged documents, where resolution of issue of

whether documents were subject to executive or statutory privilege

implicated rights rooted in public policy and affected individuals other than

those involved in particular litigation; in weighing competing consideration of

costs of piecemeal review against costs of delay, public interests expressed

in form of statutory privileges tips balance in favor of immediate appellate

review; order permitting discovery of investigative files was of such nature

that if review were postponed until final judgment in case, then claim would

be irreparably lost, as disclosure of documents could not be undone).

Rule 313 of the appellate rules defines a collateral order as:

Rule 313. Collateral Orders

(a) General rule. An appeal may be taken as of right

from a collateral order of an administrative agency or

lower court.

(b) Definition. A collateral order is an order 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. Rule 313 is jurisdictional in nature. Rae v. Pennsylvania

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Funeral Directors Association, 602 Pa. 65, 71-72, 977 A.2d 1121, 1125

(2009) (reiterating Rule 313 is subject to narrow construction and each

prong must be satisfied to allow appellate review under this rule). If the

discovery order requires the appealing party to produce materials which “the

appealing party has asserted are privileged, [Rule 313] applies, and we

accept jurisdiction.” BouSamra v. Excela Health, 167 A.3d 728, 734

(Pa.Super. 2017), appeal granted on other grounds, 2018 WL 620417 (Pa.

January 30, 2018). See also Ben, supra; Estate of Paterno v. National

Collegiate Athletic Association (NCAA), 168 A.3d 187, 201 (Pa.Super.

2017) (citing Berkeyheiser v. A–Plus Investigations, Inc., 936 A.2d

1117, 1123-24 (Pa.Super. 2007) (stating generally that discovery orders

compelling disclosure of potentially confidential and privileged materials

are immediately appealable as collateral to principal action)).

Instantly, the order before us on appeal directs Appellant to disclose

Mr. Sherman’s email, which Appellant claims is protected by the statutory

attorney-client privilege. As presented, Appellant’s claim appears to fall

within the narrow exception set forth in Ben, supra and BouSamra, supra

(allowing appeal by defendant party, under collateral order doctrine, from

interlocutory discovery order directing defendant party to disclose email

from that party’s outside counsel to that party’s in-house counsel and certain

emails generated in response to that initial email, where email chain

included three members of independent public relations firm hired by

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defendant party). Compare Harrison, supra (quashing appeal of

defendant hospital from interlocutory discovery order that permitted patient-

plaintiff to subpoena discovery materials from different, non-party hospital,

because defendant hospital had no standing to appeal order directed to non-

party hospital, on ground of privilege, where alleged privilege belonged to

non-party hospital). Here, Appellant’s “standing” to assert the attorney-

client privilege concerning Mr. Sherman’s email is an inquiry distinct from

Appellant’s standing to appeal the disclosure order directed to Appellant.

See Pa.R.A.P. 501 (stating: “Except where the right of appeal is enlarged by

statute, any party who is aggrieved by an appealable order, or a fiduciary

whose estate or trust is so aggrieved, may appeal therefrom. Note:

Whether…a party is aggrieved by the action below is a substantive question

determined by the effect of the action on the party, etc.”). Appellant is

aggrieved by the order directing Appellant to disclose the email, which gives

Appellant standing to appeal the disclosure order. Contrary to Appellee’s

contention, Appellant’s status as “aggrieved” by the disclosure order does

not necessarily defeat the collateral order doctrine. Otherwise, no party

ordered to disclose arguably protected material would be able to appeal the

disclosure order, which is simply not collateral order doctrine law. Keeping

in mind the significant distinction between Appellant’s standing to appeal

and Appellant’s standing to assert a statutory privilege, we will accept

appellate jurisdiction in this case and deny Appellee’s motion to quash on

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the grounds asserted.

On appeal, Appellant first argues the email Mr. Sherman sent to

himself is subject to the attorney-client privilege because the email

contained notes Mr. Sherman had made in preparation for a meeting with an

outside attorney for personal legal advice. Appellant concedes Pennsylvania

has no controlling law to cover this particular situation, but Appellant

analogizes to the generally-accepted view in this jurisdiction that the

attorney-client privilege covers notes taken during a meeting with an

attorney. Appellant asserts the same protection should extend to the notes

an individual makes in anticipation of meeting with an attorney because this

expansion of the privilege advances the public policy reasons behind the

attorney-client privilege. Appellant emphasizes that the overall purpose of

this privilege is to encourage open and honest communication between client

and attorney so the attorney can provide the best legal advice based on all

applicable information. Appellant submits the attorney-client privilege

should preclude any disclosure of Mr. Sherman’s email to himself in

preparation for a meeting with outside counsel.

Next, Appellant claims Mr. Sherman’s email meets the four

requirements of attorney-client privilege, as stated in 42 Pa.C.S.A. § 5916.

Specifically, Appellant maintains Mr. Sherman wrote the email with the

intent to become the client of a licensed bar member; he created the email

with the intent to convey the information contained in the email to an

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attorney during the course of receiving that attorney’s legal advice; Mr.

Sherman gave the email only to his attorney; and Mr. Sherman did not

waive his attorney-client privilege. As a practical matter, Appellant’s counsel

asserted the privilege at Mr. Sherman’s deposition, purportedly on behalf of

Mr. Sherman, who is not a party to this litigation. Appellant reasons Mr.

Sherman’s email, containing his notes in preparation for consultation with an

attorney, passes the four-part test for attorney-client privilege.

Appellant predicts the trial court’s decision to authorize the release of

Mr. Sherman’s email, created in anticipation of meeting with an attorney,

will have far-reaching consequences and affect Mr. Sherman’s ability to

obtain sound legal advice. Appellant states generally that the disclosure

ruling in this context will have a ripple effect of putting any client at risk that

those notes can be later used against the client. Appellant then offers that

the subject email in this case is analogous to notes a client takes at the

behest of his attorney and gives to the attorney, which notes are undeniably

privileged. Appellant insists that whatever prompted the creation of the

notes is fundamentally immaterial, i.e., whether a suit was already

underway or simply anticipated. Appellant submits this Court should adopt

the standards held in other jurisdictions, which declare client notes are

privileged when a client prepares them in anticipation of a meeting with an

attorney to facilitate that meeting.

Next, Appellant maintains the trial court should have performed an in

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camera inspection of Mr. Sherman’s email before ordering its disclosure, as

Appellant had requested. Appellant insists an in camera review is often

necessary for a court to determine what a document says and whether it is

privileged. Appellant further suggests that if the court had performed an in

camera review of the email, then the court would have realized how

necessary the email was for Mr. Sherman’s anticipated meeting with counsel

and the privileged character of the email. Appellant contends the court

erred in refusing to examine the email under these circumstances before

ordering its disclosure.

Finally, Appellant complains the court should have compelled Mr.

Sherman, rather than Appellant, to disclose his email. Appellant emphasizes

there is no proof Appellant has or had a copy of the email and points to Mr.

Sherman’s deposition testimony that he shared his email only with his

attorneys.2 Appellant asserts that, even if Appellant had obtained a copy of

Mr. Sherman’s email, then the privilege would still be intact because Mr.

Sherman’s attorney also represented Appellant. Appellant concludes Mr.

____________________________________________

2 Appellant complains it is basically unable to comply with the disclosure

order as Appellant does not “possess” the “notes” in question. Assuming

Appellant is talking about the email, we frankly have no way to know

whether Appellant’s averments are true, especially if Mr. Sherman created

the email during his employment with Appellant and through Appellant’s

computer system. This matter can be sorted out as the case proceeds but it

does not affect the outcome of the present appeal on the question of

attorney-client privilege, which is the only issue that qualifies for immediate

review.

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Sherman’s email remains protected by the attorney-client privilege, and we

should reverse the order directing Appellant to disclose the email. We

cannot agree.

“Whether the attorney-client privilege…protects a communication from

disclosure is a question of law. Thus, our standard of review is de novo and

our scope of review is plenary.” BouSamra, supra at 734; Estate of

Paterno, supra. Pennsylvania law defines the attorney-client privilege by

statute as follows:

§ 5928. Confidential communications to attorney

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.

42 Pa.C.S.A. § 5928. Attorney-client privilege is not automatic; it must be

invoked successfully by satisfaction of a four-element test:

Pennsylvania law imposes a shifting burden of proof in

disputes over disclosure of communications allegedly

protected by attorney-client privilege. The party invoking

a privilege must initially set forth facts showing that the

privilege has been properly invoked; then the burden shifts

to the party seeking disclosure to set forth facts showing

that disclosure will not violate the attorney-client privilege,

e.g., because the privilege has been waived or because

some exception applies. Accordingly, if 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.

Four elements must be satisfied in order to invoke

successfully the protections of attorney-client privilege:

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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 & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376

(Pa.Super. 2012), appeal denied, 618 Pa. 688, 57 A.3d 71 (2012) (internal

citations and quotation marks omitted). Additionally,

The party asserting privilege bears the burden of

producing facts establishing proper invocation of the

privilege. 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. 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. The trial court determines

whether the facts support the asserted privilege.

Estate of Paterno, supra at 194 (internal citations and quotation marks

omitted).

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“[I]n 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.” Gillard v. AIG Ins. Co., 609 Pa. 65, 88-89, 15 A.3d 44, 59

(2011). In reaching this holding, the Gillard Court began by restating the

historically acknowledged purpose of the privilege, i.e., to encourage free

and open communications between counsel and client that will lead to a

trusting and candid discourse. Id. at 75-76, 15 A.3d at 51.

Nevertheless, established Pennsylvania law also makes clear that it is

the client who owns this privilege: “The purpose of the attorney-client

privilege is to benefit the client, and accordingly, the client is the holder of

the privilege.” Maleski v. Corporate Life Ins. Co., 646 A.2d 1, 4

(Pa.Cmwlth. 1994). Additionally, “the right to assert the privilege is that of

the client.” Commonwealth v. McKenna, 213 A.2d 223, 226 (Pa.Super.

1965) (citing Appeal of McNulty, 135 Pa. 210, 19 A. 936 (1890)). The

traditional canon remains intact, i.e., the client holds the attorney-client

privilege; Gillard elaborated only on the scope of the privilege. See

Gillard, supra.

In the present case, the trial court reasoned:

[Appellant] assert[s] that the attorney-client privilege is

applicable to Mr. Sherman’s personal email from himself to

himself. [Appellant] contended that the privilege applied

because Mr. Sherman spoke with several attorneys about

things that were referenced in the email. As the party

asserting the attorney-client privilege, [Appellant] had the

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initial burden to prove that the privilege had been properly

invoked. Mr. Sherman’s email clearly was not a

confidential communication to an attorney. The email was

a communication from Mr. Sherman to himself. It was

done to document his concerns prior to his having made

any contact with an attorney. It therefore was not a

communication that otherwise would not have been made

but for the protection of the attorney-client privilege.

Under these circumstances, an in-camera review was

unnecessary.

As to the alleged violation of Mr. Sherman’s rights, we did

not direct Mr. Sherman to produce the email. The order

directed [Appellant] to produce their copy. Assuming

arguendo that the e-mail fell within the scope of the

attorney-client privilege, the fact that [Appellant] obtained

a copy vitiates that privilege.

(Trial Court Opinion at 3) (internal citation omitted).

Here, Appellant casts its position on the attorney-client privilege

largely in generic terms, as if Mr. Sherman and Appellant are one

entity/client, which is grossly misleading. First, Mr. Sherman created the

email before consulting an attorney and sent the email to himself. Mr.

Sherman’s email was not created as a confidential communication to an

attorney for the purpose of securing legal advice or created upon directive of

counsel. Further, Mr. Sherman is the proper owner of any privilege that

might attach to the email he created. Moreover, Mr. Sherman is not a party

to the present litigation and is not asserting the privilege.

Appellant cites no law to support its contention that it can invoke Mr.

Sherman’s privilege or that the privilege somehow transferred to Appellant

or that Appellant absorbed it by osmosis, simply because Appellant’s counsel

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once assumed he could assert the privilege on Mr. Sherman’s behalf at a

deposition in the present case. No one disputes the order at issue directed

only Appellant to produce the email, and Appellant shares no attorney-client

relationship with Mr. Sherman. Thus, as the party raising the attorney-client

privilege, Appellant failed to satisfy the burden of production to invoke

protection under the privilege. See Estate of Paterno, supra; Custom

Designs & Mfg. Co., supra. Therefore, the court had no reason to conduct

an in camera inspection of the email before ordering Appellant to disclose it

in this case.

Based upon the foregoing, we hold the order before us is immediately

appealable as a collateral order, under prevailing law, and Appellant has

standing to seek review of the court’s ruling because Appellant is a party to

the present case and the court’s order directed Appellant to disclose the

email. See Ben, supra; BouSamra, supra. See also Pa.R.A.P. 313 and

501. Nevertheless, Appellant lacks standing to assert that the ordered

disclosure is privileged, because the attorney-client privilege belongs to Mr.

Sherman, not to Appellant. See McKenna, supra. Thus, Appellant failed to

satisfy the four-element test to invoke protection under the attorney-client

privilege with respect to Mr. Sherman’s email. See Custom Designs &

Mfg. Co., supra. Accordingly, we affirm.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date:05/30/18

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