Court Rejects Use of 'Attorneys' Eyes Only' Designations for Privileged Documents
On April 6, the Pennsylvania Superior Court held that it was improper for a trial court to order a party to disclose to opposing counsel—on an "attorneys' eyes only" basis—documents arguably protected by the attorney-client privilege and the work-product doctrine.
April 20, 2020 at 04:17 PM
4 minute read
On April 6, the Pennsylvania Superior Court held that it was improper for a trial court to order a party to disclose to opposing counsel—on an "attorneys' eyes only" basis—documents arguably protected by the attorney-client privilege and the work-product doctrine, see CLL Academy v. Academy House Council, No. 446 EDA 2019, 2020 PA Super 89 (April 6, 2020).
The parties in CLL appear to have had a relatively conventional dispute about whether certain AHC documents were protected from disclosure by the attorney-client privilege or the work-product doctrine. But then, at CLL's request, the trial court took an unconventional step. The trial court ordered AHC to disclose the documents in dispute, unredacted, to the court and to CLL counsel on an "attorneys' eyes only" basis, so that the court could then entertain argument on the documents based on such disclosure. AHC appealed the order that called for the attorneys' eyes only disclosure.
The Superior Court resoundingly held that it was wrong to order AHC to disclose the potentially privileged documents to opposing counsel. The Superior Court stated that "we reject the use of the 'attorneys' eyes only' procedure for disputes over privilege." Instead, the Superior Court endorsed the use of in camera review of the documents by the trial court if necessary after first considering the sufficiency of a privilege log. The Superior Court held that it was "wholly inconsistent" with the concepts and purposes of the attorney-client privilege and the work-product doctrine to order a party to disclose to opposing counsel documents that could include sensitive, confidential, tactical and strategic communications.
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