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An appeals court has ruled that interviews between an attorney and employees of a company sued in a personal injury case are privileged and not accessible to the plaintiff's counsel.

The state Superior Court overturned a Philadelphia judge's ruling in Newsuan v. Republic Services that neither attorney-client privilege nor attorney work-product privilege applied to interviews between general counsel for defendant Republic Services and 16 nonparty Republic Services workers identified by plaintiff Karen Newsuan as potential eyewitnesses to her injury.

According to Superior Court Judge Correale F. Stevens' June 20 opinion, in 2015 Newsuan was working at a recycling center when a front-end loader crushed her leg, requiring an above-the-knee amputation. She subsequently sued for negligence in 2017.

Newsuan's lawyers asked for any documented statements made by the 16 employees who were said to have witnessed the accident, but Republic's corporate counsel refused the request.

At a March 2018 hearing, Republic's counsel said that several of the 16 employees agreed to retain Republic's lawyer as their counsel, barring any access to their statements from the plaintiff's lawyers under attorney-client privilege.

However, the trial court held that a potential conflict of interest existed.

“[Republic Services'] lawyers admitted in court that they did not inform these current and former employees about any potential conflicts the … lawyers may have in representing the companies being sued and at the same time representing the current or former employee fact witnesses who may have information that is adverse to the companies being sued,” the trial judge said, according to Stevens' opinion. “The Pennsylvania Rules of Professional Conduct require that when a lawyer represents multiple parties who may have adverse interests or loyalties, the lawyers must disclose the conflict and make sure that all the parties they represent waive any conflict they have. The lawyers for [Republic Services] did not explain the potential conflict nor did they get informed consent from these fact witnesses to waive any conflicts.”

The court ruled that Republic's lawyers engaged in unfair discovery tactics and ordered the company to produce the information to Newsuan. Republic appealed, arguing that the trial court erroneously ordered the production of the documents that were privileged “either because counsel and each employee formed a specific attorney-client relationship at the end of the interview or because the employee statements were acquired with the specific purpose of enabling counsel to advise corporate client/employer Republic Services in the present civil suit,” Stevens said.

The Superior Court said there was no attorney-client relationship formed between the employees and corporate counsel but agreed with Republic's second point, citing the U.S. Supreme Court's 1981 ruling in Upjohn v. United States, which held that the attorney-client privilege applied to communications made by Upjohn Co.'s middle- and lower-level employees to corporate counsel in response to questionnaires designed to assist counsel in advising Upjohn.

Stevens said “counsel made manifest to the employees the overarching corporate-interest purpose of the interviews when he informed them that Republic Services would also provide them with counsel during the litigation.”

“Finally, while the resultant attorney-client relationship that counsel and the employees believed they had formed with one another was, as discussed above, invalid for reasons of potential conflict of interest without informed consent, we nevertheless find that their apparent agreement to keep their communications confidential satisfies the confidentiality requirement expressed in Upjohn,” he said. “Accordingly, we conclude the particular communications shared between Republic Services' employees and corporate counsel fall within Republic Services' scope of attorney-client privilege.”

Newsuan is represented by Derek Jokelson of the Jokelson Law Group, declined to comment.

Republic's counsel, Joseph Fowler of Fowler Hirtzel McNulty & Spaulding, also did not return a call seeking comment.