Court Must Decide if Firm Documents Are Protected From Discovery

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If a court finds that it is, the burden then shifts to the party requesting the information to show that privilege has been waived or that there is an exception allowing the information to be disclosed.

"The Fleming court conducted a comprehensive, detailed review of the document in question in resolving whether privilege attached," Fitzgerald said, adding that, under the Superior Court's 2003 ruling in Gocial v. Independence Blue Cross, a trial judge should also review each document individually to determine "'the relevance of each [document] or explain why the privileges raised were inapplicable.'"

In addition, Fitzgerald said, the Superior Court's 2011 en banc ruling in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity held that "'documents ordinarily protected by the attorney work-product doctrine may be discoverable if the work product itself is relevant to the underlying action.'"

The Barrick court also held that the "'work-product privilege ... cannot be overcome, however, by merely asserting that the protected documents reference relevant subject matter,'" according to Fitzgerald.

"The court's heavy emphasis on the documents' purported relevance to establishing the claims in the Philadelphia County lawsuit did not justify the court's de facto holding that the attorney-client privilege and work-product doctrine did not apply to the documents in question," Fitzgerald said of Tereshko's order.

Counsel for de Botton, Theodore Chylack of Sprague & Sprague in Philadelphia, said he viewed the ruling as the Superior Court "giving the trial court the opportunity to provide more detail."

Kaplin Stewart attorney Pamela M. Tobin, who is handling the case for the firm, could not be reached for comment.

Counsel for BPG, William T. Mandia of Stradley Ronon Stevens & Young in Philadelphia, also could not be reached.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 23-page opinion in de Botton v. Kaplin Stewart Meloff Reiter & Stein, PICS No. 14-0224, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

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