J-S14032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GENESIS TURF GRASS, INC.                          IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

SYNATEK, LP, D/B/A “SYNATEK
SOLUTIONS, INC.” AND JONATHAN C.
MACNAMARA,

                          Appellant                    No. 1396 MDA 2015


                Appeal from the Order Entered July 28, 2015
                In the Court of Common Pleas of York County
                 Civil Division at No(s): 2013-SU-002913-89

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                    FILED FEBRUARY 19, 2016

      Appellant Jonathan McNamara appeals from the order of the Court of

Common Pleas of York County directing him to produce his attorney’s notes

and summaries from an interview with witness Randy Ratcliffe. As we agree

that such documentation is protected from disclosure as attorney work

product under Pennsylvania Rule of Civil Procedure 4003.3, we reverse the

trial court’s order in part with further directions contained in this decision.

      Genesis Turf Grass, Inc. (“Respondent”) initiated this action against its

former employee, Appellant and SynaTek L.P., d/b/a SynaTek Solutions, Inc.

(“SynaTek”), alleging that Appellant breached a non-competition agreement

when he began working for SynaTek.           Appellant responded by filing an

action alleging that Respondent violated the Pennsylvania Wage and

Collection Law when it failed to pay Appellant the full amount of commission

*Former Justice specially assigned to the Superior Court.
J-S14032-16



he was due under the parties’ contract. The two cases were consolidated by

the trial court.

      Upon beginning the discovery phase of trial, the parties scheduled the

deposition of Randy Ratcliff, who was also a former employee of Respondent

and a current employee of SynaTek. Respondent argued that Appellant was

not due any additional commission as he agreed to split his commissions

with Ratcliff, an allegation which Appellant denies. Appellant’s attorney, M.

Jason Asbell, Esq., admits that he met with Ratcliff prior to the deposition to

discuss claims which Ratcliff could potentially bring against Respondent.

      At Ratcliff’s June 9, 2015 deposition, Ratcliff initially stated that he had

not met with anyone prior to giving the deposition.        After a break in the

deposition, Ratcliff clarified that he had spoken to Atty. Asbell before the

deposition.    Atty. Asbell then invoked the attorney-client privilege with

respect to any conversation he had with Ratcliff.

      On July 13, 2015, Respondent filed its “Motion to Compel the

Testimony of Randy Ratcliff, [Appellant], and the Production of Attorney

Asbell’s Notes.” Respondent asked the trial court to compel the deposition

of Ratcliff in regards to his conversations with Atty. Asbell and order the

production of “any and all notes from [Atty. Asbell’s] meeting with Mr.

Ratcliff.” Respondent’s Motion to Compel, 7/13/15, at 6. Appellant filed a

response, arguing that counsel’s conversations with Ratcliff were protected

by attorney-client privilege and his notes and summaries of his interview of

Ratcliff were protected under the work product doctrine.

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      On July 28, 2015, the trial court heard oral argument on Respondent’s

motion. In a subsequent order, the trial court granted Respondent’s motion

to compel Ratcliff’s testimony and ordered the “production of documents

with respect to the conversation between Attorney Asbell and Mr. Ratcliff.”

Order, 7/29/15, at 2. The trial court indicated in its order that the attorney-

client privilege did not apply, but did not discuss the applicability of the work

product doctrine.    However, although not memorialized in the trial court’s

order, the trial court indicated at the hearing that Appellant could redact

from Attorney Asbell’s notes any of counsel’s mental impressions or legal

positions. N.T., 7/28/15, at 27-28. Appellant filed a timely notice of appeal

and complied with the trial court’s directions to file a concise statement of

errors complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b).

      On appeal, Appellant raises one issue for our review:

      Whether [Appellant’s] Counsel should be ordered to produce
      attorney memoranda, notes, and summaries of discussions with
      Mr. Ratcliff to opposing counsel when Pa.R.C.P. 4003.3 and its
      comment explicitly protect such documents from disclosure to
      opposing counsel?

Appellant’s Brief at 3.

      Before we reach the merits of Appellant’s argument, it is essential to

determine whether this Court has jurisdiction over this appeal. Pennsylvania

law provides that an appeal is proper in the following instances:

      [a]n appeal may be taken from: (1) a final order or an order
      certified as a final order (Pa.R.A.P. 341); (2) an interlocutory
      order as of right (Pa.R.A.P. 311); (3) an interlocutory order by

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      permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4)
      a collateral order (Pa.R.A.P. 313).

Veloric v. Doe, 123 A.3d 781, 784 (Pa.Super. 2015) (citation omitted).

      Appellant claims the trial court’s discovery order is subject to

immediate appeal as a collateral order pursuant to Rule 313(b). We agree.

Rule 313(b) defines a collateral order as an order that is “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).      While “most discovery orders are

deemed interlocutory and not immediately appealable because they do not

dispose of the litigation…[,] certain discovery orders, particularly those

involving ostensibly privileged material, have been found to be immediately

appealable as collateral orders pursuant to Pa.R.A.P. 313.”        Veloric, 123

A.3d at 784 (citations omitted). See also Rhodes v. USAA Cas. Ins. Co.,

21 A.3d 1253, 1258 (Pa.Super. 2011) (stating “discovery orders involving

purportedly   privileged   material   are   appealable   because   if   immediate

appellate review is not granted, the disclosure of documents cannot be

undone and subsequent appellate review would be rendered moot”).              As

Appellant alleges that the trial court’s discovery order compels the disclosure

of attorney work product, we find Appellant has appealed a collateral order

which may be subject to our review.

      In reviewing Appellant’s claim that the trial court’s discovery order was

overly broad, our standard of review is as follows:

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       Whether the attorney-client privilege or the work product
       doctrine protects a communication from disclosure is a question
       of law. This Court's standard of review over questions of law is
       de novo, and the scope of review is plenary. Our review of a
       discovery order, as well as a trial court's order imposing
       sanctions, requires the application of an abuse of discretion
       standard.

Saint Luke's Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540 (Pa.Super.

2014), appeal denied, 114 A.3d 417 (Pa. 2015).

       Appellant limits his claim to challenge the propriety of the trial court’s

discovery order with respect to the work product doctrine.1        Pennsylvania

Rule of Civil Procedure 4003.3 codifies the work product doctrine and states

in relevant part:

       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 attorney ... insurer or agent. The
       discovery shall not include disclosure of the mental impressions
       of a party's attorney or his 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 mental
       impressions, conclusions, or opinions respecting the value or
       merit of a claim or defense or respecting strategy or tactics.

Pa.R.C.P. 4003.3.           The Comment to Rule 4003.3 provides further

clarification that is particularly relevant to this case: “[u]nder the Rule, a
____________________________________________


1
  As noted above, the trial court also rejected Appellant’s claim that the
attorney-client privilege protected such documents from disclosure. As
Appellant elected not to appeal this specific finding, we need not review this
claim further.



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lawyer's notes or memoranda of an oral interview of a witness, who signs no

written statement, are protected.”      Comment to Pa.R.C.P. 4003.3.        Cf.

Commonwealth v. Williams, 624 Pa. 405, 428-29, 86 A.3d 771, 785

(2014) (noting that the Pennsylvania Rules of Criminal Procedure “vest[]

discretion in the trial court to order pre-trial disclosure of [attorney] notes,

but significantly, only those notes that are a “substantially verbatim” record

of a witness's statement; an attorney's imprecise summary, selected

statements, interpretations, or recollections, are not subject to disclosure

under the rule”).

      This Court has explained that the protection against the discovery of

work product is designed to “shield the mental processes of an attorney,

providing a privileged area within which he can analyze and prepare his

client's case. The doctrine promotes the adversary system by enabling

attorneys to prepare cases without fear that their work product will be used

against their clients.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1062 (Pa.Super.

2008) (citation omitted). The United States Supreme Court established the

work-product doctrine in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385,

91 L.Ed. 451 (1947) to protect the mental impressions, conclusions, notes,

memoranda, theories and research of an attorney from disclosure to

opposing counsel during discovery. In near identical factual circumstances,

the Supreme Court found it was improper for the District Court to order the

disclosure of the defense attorney’s private documentation and personal

memoranda of witness interviews taken in preparation of litigation without

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requiring the plaintiff to establish adequate reasons to justify production,

emphasizing:

      [h]istorically, a lawyer is an officer of the court and is bound to
      work for the advancement of justice while faithfully protecting
      the rightful interests of his clients. In performing his various
      duties, however, it is essential that a lawyer work with a certain
      degree of privacy, free from unnecessary intrusion by opposing
      parties and their counsel. Proper preparation of a client's case
      demands that he assemble information, sift what he considers to
      be the relevant from the irrelevant facts, prepare his legal
      theories and plan his strategy without undue and needless
      interference. That is the historical and the necessary way in
      which lawyers act within the framework of our system of
      jurisprudence to promote justice and to protect their clients'
      interests.    This work is reflected, of course, in interviews,
      statements, memoranda, correspondence, briefs, mental
      impressions, personal beliefs, and countless other tangible and
      intangible ways — aptly though roughly termed by the Circuit
      Court of Appeals in this case (153 F.2d 212, 223) as the ‘Work
      product of the lawyer.’ Were such materials open to opposing
      counsel on mere demand, much of what is now put down in
      writing would remain unwritten.           An attorney's thoughts,
      heretofore inviolate, would not be his own.            Inefficiency,
      unfairness and sharp practices would inevitably develop in the
      giving of legal advice and in the preparation of cases for trial.
      The effect on the legal profession would be demoralizing. And
      the interests of the clients and the cause of justice would be
      poorly served.

Id. at 510-11, 67 S. Ct. at 93-94, 91 L. Ed. 451.

      In the instant case, the trial court ordered Appellant to produce the

“documents with respect to the conversation between Attorney Asbell and

Mr. Ratcliff.”   Order, 7/28/15, at 2.      While the order stated that the

attorney-client privilege did not prevent disclosure of this information, the

trial court’s order fails to address the fact that protected work product

material may be at issue. Although the trial court order suggested on the

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record at the hearing on Respondent’s motion to compel that Appellant could

redact from Attorney Asbell’s notes any of counsel’s mental impressions or

legal positions, the trial court fails to recognize that counsel’s notes may not

contain any discoverable material such as verbatim statements made by

Ratcliff, but simply be counsel’s personal recollection and summary of the

interview.

      In reviewing such a discovery request, the party invoking the 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 [] privilege, e.g., because

the privilege has been waived or because some exception applies.” T.M.,

950 A.2d at 1063. Accordingly, upon remand, the trial court may conduct in

camera review of the documents sought in discovery to assess whether they

contain discoverable material. As a result, we vacate the trial court’s July

28, 2015 order in part with respect to its direction that documents related to

Attorney Asbell’s conversation with Ratcliff be produced without limitation.




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      Order vacated.      Case remanded with instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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