Attorney-Client Privilege Work Product Appeal

Twp. of Neshannock v. Kirila Contractors, Inc., PICS Case No. 17-1034 (C.P. Lawrence Jun. 20, 2017) Hodge, J. (8 pages).

An appeal concerning discovery issues was proper under the collateral order doctrine. The court concluded the moving party would suffer harm if documents protected by the attorney-client privilege or the work product doctrine were presented to the jury.

The Township of Neshannock filed a notice of appeal and an emergency motion for stay pending appeal. The court granted the stay pending the outcome of the appeal.

Neshannock filed a concise statement of matters on appeal, and the court issued an opinion on May 19, 2017, regarding all of the issues raised by Neshanock. On May 31, 2017, Defendants filed a statement of errors complained of on appeal. Defendants' statement raised issues about discovery that were not addressed by the court's ruling of May 19, 2017.

The issue before the court pertained to 22 discovery exhibits, most of which were comprised of numerous emails. Neshannock argued that defendants were precluded from introducing certain communications set forth in the exhibits because they were privileged by the work product doctrine or the attorney-client privilege. Additionally, Neshannock took the position that defendants were precluded from introducing or eliciting the facts contained in these exhibits even if they were obtained by defendants from a source other than the exhibits at issue. Defendants responded that the record contained no facts to prove the source of the information in the exhibits, so Neshannock's appeal was frivolous. Defendants previously offered to stipulate to an order precluding the use of certain documents at trial, but only on the condition that Neshannock withdrew its appeal. The court held that the stipulation was irrelevant, because Neshannock did not accept it and was not required to do so.

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 2014. Appeals from orders granting discovery were appealable under the collateral order doctrine, so the court determined it had authority to consider Neshannock's appeal regarding the exhibits.

The court found that Neshannock would suffer harm if protected information was released to the jury and that information affected the jury's decision. Entry of the stay was proper, because the court concluded that a stay did not harm the other parties or the public interest.