J-A31031-17

                             2018 PA Super 157


 DEBORAH MCILMAIL,               :           IN THE SUPERIOR COURT OF
 ADMINISTRATRIX OF THE ESTATE OF :                PENNSYLVANIA
 SEAN PATRICK MCILMAIL           :
                                 :
                                 :
           v.                    :
                                 :
                                 :
 ARCHDIOCESE OF PHILADELPHIA,    :           No. 1009 EDA 2017
 MONSIGNOR WILLIAM LYNN, AND     :
 FR. ROBERT BRENNAN              :
                                 :
                                 :
 APPEAL OF: THE ARCHDIOCESE OF   :
 PHILADELPHIA                    :

               Appeal from the Order Entered February 22, 2017
             In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): November Term, 2013, No. 01114


BEFORE:      PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

OPINION BY PANELLA, J.                               FILED JUNE 07, 2018

     In this case we are asked to resolve two issues: (1) are notes and

memoranda of witness interviews by a private investigator, acting at the

express direction of defense counsel, protected by the work-product doctrine,

as defined in Pennsylvania Rule of Civil Procedure No. 4003.3, to the same

extent as if the interviews were conducted by counsel, and (2) whether the

defense should be estopped from relying upon the work-product doctrine

because it pursued disclosure of the identical materials from the claimant’s

attorneys.




____________________________________
* Former Justice specially assigned to the Superior Court.
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      As indicated above, the discovery under review involves notes from

witness interviews conducted by a private investigator hired by defense

counsel. The trial court ruled that the witness interviews were discoverable

under Rule 4003.3, but that the work-product doctrine applied in a limited

fashion. Because the interviews were not conducted by an attorney, only the

“impressions or evaluations” of the investigator were barred from production,

unlike the broader protection the doctrine grants to attorneys under Rule

4003.3. Additionally, the trial court, in a strongly worded opinion, held that

the defense was estopped from challenging the disclosure of the materials in

issue in light of its conduct during the discovery phase of the litigation.

                                    BACKGROUND

Factual History

      The plaintiff, Deborah McIlmail, Administratrix of the Estate of Sean

Patrick McIlmail, filed this action in November 2013 against the Archdiocese

of Philadelphia, Monsignor William Lynn and Father Robert Brennan. Deborah

McIlmail is the mother of the decedent, and alleged that Father Brennan

engaged in a course of sexual abuse of the decedent, while Sean was a minor,

starting in 1998.

      In relation to the causes of action against Monsignor Lynn and the

Archdiocese, the plaintiff alleges that they engaged in a course of concealment

after learning of Brennan’s abusive conduct. The result of their actions was

that Brennan continued to have unsupervised access to Sean during which


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time additional episodes of sexual abuse were perpetrated. The plaintiff also

contends that Brennan was an employee and agent of the Archdiocese.

Witness Statements and Subpoena

        During the discovery stage of the case, the trial court appointed former

Justice Russell Nigro to meet with counsel and resolve certain discovery

disputes. An issue concerning interviews of witnesses had been raised by the

parties and was addressed at a discovery conference held on September 9,

2016.

        Counsel for the Archdiocese had retained Auld & Associates, a private

investigator firm, to conduct interviews with potential witnesses identified by

the Archdiocese’s attorneys. Counsel for the plaintiff sought discovery of the

investigator’s notes and summaries of the witness interviews.

        At an earlier stage of discovery, Plaintiff sent a Notice of Intent to

Subpoena the files of the defense investigator, Auld and Associates. The

proposed subpoena sought documents in Auld’s files including:

        1.   Interview notes;
        2.   Written reports, whether received or prepared by Auld;
        3.   Written witness statements, including drafts;
        4.   Photographs or video recordings of the witnesses;
        5.   Intra-office memoranda and analyses;
        6.   Lists of individuals contacted and/or interviewed; and
        7.   Any correspondence from Auld regarding the McIlmail case.

Justice Nigro reviewed Rule 4003.3, and determined that witness statements

obtained by either side of the litigation were discoverable, but that any

impressions about the statements by the interviewer or communications


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between the interviewer and counsel were not discoverable. The term

“statement” was limited to statements of fact elicited from the witnesses by

the interviewer, not any impressions of the witnesses. Justice Nigro based his

decision on the concluding sentences of Rule 4003.3:

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

(emphasis added).

      In the event that Justice Nigro’s decision was not acceptable, the parties

were given an opportunity to object and seek review from the trial court. No

objection was raised by either side.     The parties then exchanged similar

discovery requests on this basis. First, defense counsel served on plaintiff

discovery requests seeking information obtained from witnesses interviewed

by the plaintiff’s counsel and their investigators. A few days later, plaintiff

sent an identical set of discovery requests back to the Archdiocese, seeking

the notes of interviews from witnesses questioned by the Archdiocese’s

investigator.

      Plaintiff’s counsel provided to the defense the identity of putative

witnesses that the plaintiff’s investigator had located but not yet interviewed.

In what was seemingly a surprise to everyone else, the defense then objected

to plaintiff’s request for the statements of the witnesses questioned by Auld.

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Although counsel for the Archdiocese identified Auld as its investigator, and

stated that it had directed Auld to interview certain witnesses, it refused to

provide any information obtained from these witnesses.

      Plaintiff then moved to compel the disclosure of the notes taken from

Auld’s interviews with the witnesses. On February 22, 2017, the trial court

entered an order that overruled the defense objection and granted the

plaintiff’s motion to compel production of the witness statements.

Trial Court’s Decision

      The trial court first found that the Archdiocese should be estopped from

contesting the decision made by the discovery master on September 9, 2016.

At that conference, Justice Nigro announced his decision to permit limited

discovery of the parties’ respective investigator’s notes and files. Although

Justice Nigro instructed counsel to notify him within a week if they intended

to contest that decision, neither side took any action. Instead, the parties sent

each other similar discovery requests for the notes of the witness interviews.

      The trial court found that the plaintiff, relying upon the defense’s

inaction in raising any objection, responded to the defendant’s request for the

information about the potential witnesses. After receiving plaintiff’s response,

the Archdiocese raised its objection for the first time. The trial court found

that estoppel was necessary to ensure “fundamental fairness” in light of the

inducement and inconsistent positions adopted by the Archdiocese.




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      On the merits of the issue, the trial court found that the work-product

doctrine, pursuant to Rule 4003.3, applied. But rather than the broader

protection granted to materials prepared and compiled by an attorney, the

trial court found that the doctrine was limited to the later clause of Rule 4003.3

because Auld was a “representative of a party” and not an attorney. Therefore,

the memoranda, notes or summaries of the interviews were discoverable. This

appeal followed.

                                  DISCUSSION

      Initially, we must make an independent determination as to whether the

Order of February 21, 2017, is appealable as a collateral order. Rule 313 of

our Rules of Appellate Procedure, promulgated in 1992, solidified and codified

the appealability of collateral orders. The rule provides:

          (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.

“The [collateral order] doctrine is to be construed narrowly to preserve the

integrity of the general rule that only final orders may be appealed; thus, the

requirements for a collateral order are applied relatively stringently.” In re

Estate of Stricker, 977 A.2d 1115, 1119 (Pa. 2009), superseded by statute

as stated in In re Estate of Plance, 175 A.3d 249 (Pa. 2017).


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      Generally,   discovery   orders    are   deemed   interlocutory   and   not

immediately appealable, because they do not dispose of the litigation. On the

other hand, discovery orders requiring disclosure of privileged materials

generally are appealable under Rule 313 where the issue of privilege is

separable from the underlying issue. This is because if immediate appellate

review is not granted, the disclosure of documents cannot be undone and

subsequent appellate review would be rendered moot. See Rhodes v. USAA

Cas. Ins. Co., 21 A.3d 1253, 1258 (Pa. Super. 2011); Dibble v. Penn State

Geisinger Clinic, Inc., 806 A.2d 866, 870 (Pa. Super. 2002) (“[T]here is no

question that if the documents which have been disclosed are in turn

disseminated ... appellate review of the issue will be moot because such

dissemination cannot be undone.”)

      We must review the trial court’s decision on an issue-by-issue basis and

every one of the Rule’s three prongs must be satisfied before collateral

appellate review is permitted. See Rae v. Pennsylvania Funeral Directors

Association, 977 A.2d 1121, 1130 (Pa. 2009).

      In Ben v. Schwartz, 729 A.2d 547 (Pa. 1999), our Supreme Court

determined that an appeal from an order compelling the production of an

investigative file of the defendant dentist in a malpractice action, under the

control of the Bureau of Professional and Occupational Affairs, and which the

Bureau claimed was privileged, was an appealable collateral order under Rule

313. The Court considered three prongs in its analysis: 1) whether the order


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was separable from the main cause of action, 2) whether the right involved

was too important to be denied review, and 3) whether the claim would be

irreparably lost should review be denied. See id. at 481.

      It is not difficult to conclude that the order in question here is separable

from the main cause of action.      The issue presented to us is whether the

accounts of the witness interviews are discoverable, which may lead to

evidentiary issues at trial. This decision will have a bearing upon the ultimate

issue of liability but is clearly separable from it because it can be addressed

without an analysis of the merits of the underlying cause of action.

Furthermore, the appellate review granted in Ben v. Schwartz has

historically been restricted to discovery orders granting disclosure of arguably

privileged information, and not to orders denying disclosure of the disputed

material. We, therefore, conclude that the issue is separable for purposes of

determining whether the order is collateral under Rule 313.

      As to the issue of importance, an issue falls under Rule 313 if the issue

implicates rights deeply rooted in public policy and impacts individuals other

than those involved in the litigation of that case. “For purposes of defining an

order as a collateral order under Rule 313, it is not sufficient that the issue be

important to the particular parties. Rather . . . it must involve rights deeply

rooted   in   public   policy   going   beyond   the   particular   litigation   at

hand.” Geniviva v. Frisk, 725 A.2d 1209, 1213-1214 (Pa. 1999).




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J-A31031-17


      Here, similar to numerous other reported decisions, the issue implicates

the work-product doctrine. Clearly, this issue affects individuals other than the

litigants because the trial court ruling will affect the manner in which the work-

product doctrine applies in similar situations. Accordingly, we find that the

claims raised by Appellant meet the importance element of Rule 313.

      As we stated above, once the documents are handed over, the claim of

privilege will be irreparably lost.

      For the foregoing reasons, we conclude that the trial court’s February

22, 2017 order satisfies the criteria for a collateral order set forth by Rule 313.

      Turning to the issue of privilege, Pennsylvania Rule of Civil Procedure

4003.1 defines the scope of discovery:

          (a) Subject to the provisions of Rules 4003.2 to 4003.5
          inclusive and Rule 4011, a party may obtain discovery
          regarding any matter, not privileged, which is relevant
          to the subject matter involved in the pending action,
          whether it relates to the claim or defense of the party
          seeking discovery or to the claim or defense of any other
          party, including the existence, description, nature,
          content, custody, condition and location of any books,
          documents, or other tangible things and the identity and
          location of persons having knowledge of any discoverable
          matter.

          (b) It is not ground for objection that the information
          sought will be inadmissible at the trial if the information
          sought appears reasonably calculated to lead to the
          discovery of admissible evidence.

          (c) Except as otherwise provided by these rules, it is not
          ground for objection that the information sought involves
          an opinion or contention that relates to a fact or the
          application of law to fact.


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(emphasis added). “Generally, discovery is liberally allowed with respect to

any matter, not privileged, which is relevant to the cause being tried.” PECO

Energy Co. v. Insurance Company of North America, 852 A.2d 1230,

1233 (Pa. Super. 2004) (citation and internal quotation marks omitted).

       Although the former version of Rule 4011(d), which was amended in

1978, restricted the discovery of trial preparation material,1 Rule 4003.3 now

permits it. Rule 4003.3 provides:

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




____________________________________________


1 The 1978 amendment to Rule 4011 deleted subsection (d) which limited the
discovery of trial preparation material.




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Pa.R.C.P. No. 4003.3 (emphasis added). However, the disclosure of this

material is subject to the work-product privilege, and is divided into two

categories: attorney work product and non-attorney work product:

           [Rule 4003.3] permits it, subject to the limitation that
           discovery of the work product of an attorney may not
           include disclosure of the mental impressions, conclusions,
           opinions, memoranda, notes, legal research or legal
           theories of an attorney. As to any other representative of
           a party, it protects the representative's disclosure of his
           mental impressions, conclusions or opinions respecting the
           value or merit of a claim or defense or respecting strategy
           or tactics. Memoranda or notes made by the representative
           are not protected.

Pa.R.C.P. No. 4003.3, Explanatory Comment.2

       The rule obviously sets a different restriction on material prepared by a

party’s attorney compared to material sought from a party’s representative.

Our Supreme Court set a high bar of protection in relation to the discovery of

the work product of an attorney, which may not include disclosure of the

mental impressions, conclusions, opinions, memoranda, notes, legal research

or legal theories of an attorney. On the other hand, as to materials produced

by any other representative of a party, the rule only prohibits the disclosure

____________________________________________


2 “[A] note to a rule or an explanatory comment is not a part of the rule, but
may be used in construing the rule.” Barrick v. Holy Spirit Hosp. of the
Sisters of Christian Charity, 32 A.3d 800, 809 (Pa. Super. 2011), aff'd sub
nom., 91 A.3d 680 (Pa. 2014) (quoting Boatin v. Miller, 955 A.2d 424, 427
(Pa. Super. 2008)).




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of the representative's mental impressions, conclusions or opinions respecting

the value or merit of a claim or defense or respecting strategy or tactics.

“Memoranda or notes made by the representative are not protected.” Id.

      Here, the trial court entered an order on February 22, 2017, which

overruled the Archdiocese’s objection to the subpoena issued by McIlmail. The

trial court essentially decided that the witness statements, as recorded by the

private investigator retained by the Archdiocese’s counsel, were discoverable

as the product of a party’s representative.

      Whether the trial court properly applied the work-product doctrine, as

defined under Rule 4003.3, is a matter of law. See Barrick, 32 A.3d at 808.

“Whether the attorney-client privilege or the work product doctrine protects a

communication from disclosure is a question of law.” In re Thirty-Third

Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014)

(citations omitted). Accordingly, our standard of review is de novo and to the

extent necessary, the scope of review is plenary. See Estate of Paterno v.

National Collegiate Athletic Ass'n (NCAA), 168 A.3d 187, 198 (Pa. Super.

2017)

      Therefore, we must review the applicability of the work-product doctrine

with regard to the investigator’s notes and summaries of witness interviews,

excluding of course the investigator’s conclusions and mental impressions.

The party invoking a privilege must initially set forth facts showing that the

privilege has been properly invoked. See Yocabet v. UPMC Presbyterian,


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119 A.3d 1012, 1019 (Pa. Super. 2015). Consequently, the Archdiocese must

establish that the work-product doctrine was properly invoked with respect to

the notes and summaries written by the investigator, not the attorney.

      The Archdiocese challenges the trial court’s interpretation of the work

product doctrine, arguing that the notes and memoranda of the witness

interviews, conducted by the private investigator acting at the express

direction of counsel, are protected by the work-product doctrine to the same

extent as if the interviews were conducted by counsel.         The Archdiocese

argues that an investigator hired by defense counsel does not fall under the

classification of a party representative referenced in Rule 4003.3, but rather

should be considered an agent of the attorney. Therefore, the Archdiocese

contends the investigator’s notes and files fall under the broader protection of

work product applicable to attorneys under Rule 4003.3.

      After careful review of the record and the applicable Pennsylvania Rules

of Civil Procedure, including the case law interpreting those rules, we conclude

that conferring attorney work-product protection to the investigator’s notes of

the interviews would impermissibly expand Rule 4003.3.

      The interpretation of the Rule 4003.3, as proposed by the Archdiocese

in this case, could potentially corrode the clear distinction that the Rule makes

between the work-product of an attorney with that of a non-attorney

representative. The work-product of an attorney must necessarily relate to

legal work performed for a client, not to notes memorializing the statements


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of witnesses taken by an investigator acting a mere agent of the client or of

the attorney. To apply the privilege in such a situation as presented here would

ignore the differences specified in Rule 4003.3.

      The intent behind Rule 4003.3 is to shield the mental processes of

an attorney, designed to protect from disclosure an attorney’s thoughts and

views about a case including theories, mental impressions or litigation plans.

The production of the documents requested by McIlmail will, in no way,

infringe upon the protection granted to an attorney’s work product. These

documents relate solely to factual information obtained by the investigator

from the potential witnesses, and do not reflect, in any manner whatsoever,

the thought process of the attorneys involved.

            The protection against the discovery of work product is
            designed to shelter the mental processes of an attorney,
            providing a privileged area within which he can analyze and
            prepare his client's case. . . The underlying purpose of the
            work product doctrine is to guard the mental processes of
            an attorney, providing a privileged area within which he
            can analyze and prepare his client's case.

Estate of Paterno, 168 A.3d at 197–98 (quotation marks and citations

omitted).

      The Explanatory Comment accompanying Rule 4003.3 states, in

pertinent part, “[t]he Rule is carefully drawn and means exactly what it

says.” Pa.R.C.P. No. 4003.3, Explanatory Comment. Our Court has had prior

opportunities to discuss the appropriateness of a trial court’s decision to either

protect a document from disclosure or order its production under this rule.


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The emphasis has traditionally been on whether the document was the work

product of an attorney:

              The underlying purpose of the work-product doctrine is 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). Accordingly, Rule 4003.3 specifically “immunizes the lawyer's

mental impressions, conclusions, opinions, memoranda, notes, summaries,

legal     research     and    legal   theories, nothing     more.”    Pa.R.C.P.     No.

4003.3, Explanatory Comment.

        The information requested does not even relate to the interviewer’s

“mental impressions, conclusions or opinions respecting the value or merit of

a claim or defense or respecting strategy or tactics” as referenced in Rule

4003.3, let alone the mental processes of the attorneys involved. Nor is this

contention argued by the Archdiocese. The materials requested are not

memoranda of communications to, or advice from, the Archdiocese’s

attorneys.      The documents identified in the subpoena, and ordered to be

disclosed by the trial court, contain primarily factual statements from potential

witnesses. We find nothing in the materials that fall within the attorney work-

product doctrine.

        In support of its contention that these notes of interviews are protected

by      the    work-product    doctrine,     the    Archdiocese   relies   first   upon

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J-A31031-17


Commonwealth v. Kennedy, 876 A.2d 939 (Pa. 2005). The Archdiocese

points out to us that the decision in Kennedy cites United States v. Nobles,

422 U.S. 225 (1975), for the proposition that the work-product doctrine

extends to cover agents of an attorney. We find Kennedy to be

distinguishable from the issues in this case.

      Initially, we note that the Court in Kennedy examined the work-product

doctrine in the context of a criminal case, and applied Pennsylvania Rule of

Criminal Procedure No. 573. The protections provided in Rule 573 differ

dramatically from Rule 4003.3, and no mention is made in Rule 573 of

privileges afforded to a representative of a party. Furthermore, our Supreme

Court made clear that its adoption of the general work-product doctrine as

announced in Nobles was restricted to “the context of pre-trial discovery in

criminal matters . . . .” 876 A.2d at 946. As to the exact issue before us, the

Court in Kennedy concluded that

          Rule 573(G) does not state, as the Nobles Court did, that
          the protections afforded to attorneys' work-product under
          this Rule extend to the work-product of agents of defense
          attorneys.

Id. The Court went on to hold that in criminal proceedings, the work-product

doctrine precluded the prosecution from calling as a witness an expert, i.e.,

an agent, hired by the defense if the defendant decided against calling the

agent as a witness at trial. This discussion is inapposite to the issues presented

to us here.




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      The second case cited to us by the Archdiocese is Bagwell v.

Pennsylvania Department of Education (Bagwell I), 103 A.3d 409 (Pa.

Cmwlth. 2014). However, the main issue in Bagwell I was whether the work-

product privilege is available to information prepared in anticipation of

litigation, and not to other materials obtained by the attorney at other stages

of counsel’s representation. The Commonwealth Court held that the protection

granted to mental impressions is unqualified, and it does not matter whether

the materials were prepared in anticipation of litigation. Id. at 417.

      Furthermore, the Commonwealth Court cited Rittenhouse v. Bd. of

Sup'rs (Pa. Cmwlth., No. 1630 C.D. 2011, filed April 5, 2012), an unpublished

memorandum, in support of its statement that the “work-product privilege . .

. may extend to the product of an attorney's representative.” Rittenhouse

addressed Pa.R.C.P. No. 4003.3 only in the framework of the latter portion of

the rule, i.e., whether information from the Pennsylvania Secretary of

Education, as it related to the Sandusky scandal, was protected by the work-

product of a “representative of a party” without regard to the attorney work-

product doctrine.

      Therefore, we disagree with the Appellant that Bagwell I requires a

different conclusion.

      For all the foregoing reasons, we affirm the trial court’s order in relation

to the application of the work-product doctrine and Rule 4003.3. In light of




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our decision on the merits of the order to disclose the materials requested, we

find no necessity to reach the estoppel issue.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/18




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