In-house corporate attorneys will be pleased to learn of the recent Pennsylvania Superior Court decision recognizing the attorney client privilege for communications between corporate employees and in-house corporate counsel and the work product privilege for notes taken by in-house counsel of such communications.
In the case of Newsuan v. Republic Servs, 2019 Pa. Super. LEXIS 613 (Pa. Superior Ct., June 20, 2019), Republic’s in-house attorney interviewed 16 employees in connection with a personal injury suit alleging negligence on the part of Republic. Pursuant to Plaintiff’s counsel’s discovery request and Motion to Compel, the trial court ordered the production of the witness statements taken by Republic’s in-house attorney and the in-house attorney’s notes of the meetings. Republic appealed to the Superior Court.
The Superior Court relied upon the U.S. Supreme Court’s holding in Upjohn Co. v. U.S. 449, U.S. 383 (1981), in finding that the employees’ communications to the in-house attorney were privileged, because they were kept confidential and were made at the request of the in-house attorney with the goal of furthering the in-house attorney’s provision of legal advice to the client, Republic.
The Superior Court then also reversed the trial court by finding that the in-house attorney notes were protected from disclosure by the work product rule, since they contained the mental processes of the in-house attorney at a time that an attorney-client relationship existed.
Caution must be taken, however, in regard to the Superior Court’s note that the attorney-client privilege did not preclude the disclosure of the underlying facts by those who communicated with the in-house attorney. Thus, according to the Court, the Plaintiff could seek ex parte interviews of the employees regarding their factual observations and could also seek such information through depositions and interrogatories.