In most cases, trial attorneys are so focused on trial theme and the development of evidence that issues of attorney-client privilege and work product protections fall to the wayside. For most attorneys, the concept is simple and can be boiled down to this: any communication between counsel and her client, and anything prepared by an attorney in furtherance of his case is protected from discovery. Since law school, very few attorneys have spent much thought beyond that on the subject. As such, it is easy to see why they are often taken for granted and why most litigants are reactive rather than proactive in protecting these privileges. However, the case of Brown v. Greyhound, 2016 Pa.Super.108 (2016), is a good example on why these issues should not be overlooked.

Brown arose from a bus accident on Interstate 80. As a result of that accident, 42 personal injury plaintiffs filed lawsuits against Greyhound Inc., FirstGroup America, and several other defendants. As part of the litigation, plaintiffs sent defendants Greyhound and FirstGroup a request for production of documents seeking the production of Greyhound's third-party adjuster's (Gallagher Bassett) claims file and a copy of the videotaped “mock deposition” of Greyhound's bus driver. The defendants objected to the requests on attorney-client privilege and work product grounds. After the trial court held a hearing and an in camera review of the documents, it ultimately ordered that most the claims file and the “mock deposition” be turned over to the plaintiffs. The defendants appealed to the Superior Court.

Pa. Attorney Client Privilege and Work Product Doctrine

Prior to siding with the trial court, the Superior Court reviewed both Pennsylvania's Attorney Client Privilege and Work Product Doctrine. The Superior Court noted that for a “client” to properly invoke the attorney-client privilege to protect communication between it and its attorney, “the communication must be made without the presence of strangers and made for “the purpose of securing either an opinion of law, legal services or assistance in a legal matter” (so long as it is not for the purpose of committing a crime or tort). The court noted that additionally when dealing with a corporate client, the privilege “extends to communications between its attorneys and agents or employees authorized to act on the corporation's behalf.”

With respect to work product, the Superior Court noted that the work product doctrine is a “qualified privilege for certain material prepared by an attorney acting for his client in anticipation of litigation.” Additionally, the Superior Court took note of the fact that Rule 4003.3 of the Pennsylvania Rules of Civil Procedure codifies this by excluding from discovery the “mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories” and the “mental impressions, conclusions or opinions, respecting the value or merit of a claim or defense or respecting strategy or tactics,” of a representative of a party (typically an insurance adjuster or other claims professional).

Third Party Claims Administrator File

Gallagher Bassett was Greyhound's third-party adjusting company handling the bus accident claims. Part of those duties included the retention of counsel to defend Greyhound against those claims. The defendants argued that since Gallagher was essentially the outsourced claims “arm” for the self-insured defendant Greyhound (versus an insurance company) the entire claims file should be subject to privilege. The defendants noted that Gallagher essentially performed all the investigative tasks and essentially controlled the litigation for defendants. Moreover, the defendants noted that the Gallagher claims file included verbatim recitations or summaries of confidential communications from defense counsel to Gallagher about the case(s).