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Superior Court Reviews Scope of Privilege in Attorney / Third-Party Administrator Communications

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In Brown v. Greyhound Lines, Inc., 2016 PA Super 108 (Pa. Super. Ct. May 24, 2016), the Pennsylvania Superior Court reviewed issues concerning the attorney-client privilege and the work product doctrine in the context of attorney and third-party administrator communications.

The lawsuit commenced when 42 plaintiffs filed personal injury actions against Greyhound for injuries sustained in a bus accident. FirstGroup owns, operates, and/or controls Greyhound. Appellants Greyhound Lines and FirstGroup America appealed the trial court's order to produce discovery requests.

One discovery request at issue concerned a mock deposition of the bus driver created for appellants' counsel in preparation of a deposition in another case. Greyhound contended the trial court erred in concluding, "a recorded statement, videoed by a third party, transcribed by a Court Reporter is clearly within [the definition of a] discoverable statement identified by Rule 4003.4," and argued that the mock deposition should be afforded protection under the attorney-client privilege.

Greyhound asserted two issues for review regarding the mock deposition. First, "whether communications between counsel for a party and the party's claim administrator, which hired counsel, are protected by the attorney-client privilege." (emphasis added). Second, in the alternative, "whether communications between counsel for a party and the party's claim administrator, who is investigating on counsel's behalf, are protected by the attorney-client privilege." (emphasis added). The court waived both issues on the basis that Greyhound's brief failed to sufficiently develop an argument and merely cited case law without applying it to the case at hand.

Even if Greyhound's brief did sufficiently develop the issue to avoid waiver, the court explained, Greyhound failed to satisfy its initial burden of proof producing adequate facts to show privilege is applicable to the mock deposition. The court noted that the mock deposition was "never intended to be confidential." Although it was unclear whether the videotape was actually shared, the trial court and Superior Court both noted it was clear that a court reporter and videographer were present while taking the bus driver's statement. Therefore, the court concluded, "in the absence of an affidavit, statement, or testimony in support of the circumstance, Greyhound has not demonstrated a reasonable expectation that the videotaped statement would remain confidential."

FirstGroup's assertion that the trial court erred in ordering the production of the mock deposition was also waived. The court concluded that the issue was not before it, as FirstGroup failed to file a notice of appeal from the specific mock deposition order. The court also noted that FirstGroup's brief adopted the arguments made by Greyhound, which it found insufficient. Therefore, the trial court's order to produce the mock deposition was affirmed.

The second discovery request at issue was for the "contents of claim files, correspondence, and emails discussing the bus accident that were sent to or from any individual employed by Gallagher Bassett," a third-party adjustment company which hired counsel and contractually handled claims and investigations for Appellants Greyhound and First Group. Greyhound and FirstGroup argued the information should have been afforded protection under the work-product doctrine. FirstGroup contended that although the information may have appeared at first to be a "recitation of investigative efforts of Gallagher," it is clear after closer inspection that the documents "contain the mental impressions and/or legal theories that Gallagher Bassett intends to utilize in defending claims made by those injured in the bus accident." The court found this argument to be conclusory, as FirstGroup failed to describe how or why the documents contained mental impressions.

Additionally, FirstGroup argued that the communications between counsel and Gallagher should have been afforded the protection of the attorney-client privilege because "unlike an insurance company, Gallagher is in a unique position and serves as a direct arm of Greyhound." Gallagher was defense counsel "client representative," and information relayed between Gallagher and its counsel should be afforded the same protection as if it were relayed directly to Greyhound. The court asserted, however, that FirstGroup cites no case law to support its contention. The issue was waived.

The court criticized appellants' claim that any and all information contained in Gallagher's file is privileged. Quoting the trial court, "Appellants have unreasonably and improperly claimed attorney-client privilege and mental impression privilege of Greyhound claims representatives [in order] to thwart proper discovery." The trial court individually reviewed the hundreds of documents. Appellants, however, did not review the trial court's decision "document by document," and merely asserted the trial court erred in its ruling. Therefore, the court concluded, appellants failed to carry their burden of proof to claim privilege as to the second discovery request, and the trial court's order was affirmed.

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