Court Must Decide if Firm Documents Are Protected From Discovery

, The Legal Intelligencer

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In April 2010, however, the federal court dismissed the two federal claims and transferred the case to the Delaware County Court of Common Pleas for disposition of the remaining state claims, Fitzgerald said.

In October 2010, meanwhile, de Botton filed its wrongful use of civil proceedings and abuse of process suit against Kaplin Stewart and BPG in Philadelphia trial court, according to Fitzgerald.

BPG filed a motion to stay the Philadelphia lawsuit and transfer it to the Delaware County trial court, but a Delaware County judge denied the petition, relying on de Botton's counsel's assurance that discovery for the Philadelphia suit would be conducted with "'laser-like precision'" limited only to the issues of whether Kaplin Stewart and BPG committed a wrongful use of civil proceedings and abuse of process in filing the federal suit, Fitzgerald said.

In April 2011, according to Fitzgerald, de Botton served Kaplin Stewart and BPG with interrogatories and requests for documents in the Philadelphia action.

Kaplin Stewart and BPG objected, citing the attorney-client privilege and work-product doctrine, and the parties executed a clawback agreement, which the court approved, Fitzgerald said.

Kaplin Stewart then handed over 290 pages of work product and a privilege log listing withheld documents, according to Fitzgerald.

In February 2012, Fitzgerald said, de Botton filed a motion to compel Kaplin Stewart to produce additional documents for in camera review by the trial court.

According to Fitzgerald, Tereshko granted the motion, reasoning, "'At the heart of this wrongful use of civil process action are the very communications which [Kaplin] seek[s] protection for under the attorney-client privilege or the attorney work-product doctrine. Therefore, they are relevant and discoverable and ostensibly not covered by the cited privileges.'"

But Fitzgerald said Tereshko's rationale did not adequately address the privilege issues or the clawback agreement.

Fitzgerald said that, under the 2007 Superior Court case Nationwide Mutual Insurance v. Fleming, the party asserting attorney-client privilege with regard to requested documents bears the initial burden of proof to show that the information is privileged.

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