Court Must Decide if Firm Documents Are Protected From Discovery

, The Legal Intelligencer

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In litigation it said has "consumed significant judicial resources," the Pennsylvania Superior Court has ruled that a Philadelphia trial judge failed to address why 30 documents he compelled Blue Bell, Pa.-based Kaplin Stewart Meloff Reiter & Stein to hand over to the plaintiffs in a wrongful use of civil proceedings and abuse of process suit were not protected by attorney-client privilege and the work-product doctrine.

In an unreported memorandum decision in de Botton v. Kaplin Stewart Meloff Reiter & Stein, a three-judge panel of the court unanimously vacated Philadelphia Court of Common Pleas Judge Allan L. Tereshko's order requiring Kaplin Stewart to produce 30 documents sought by plaintiffs who alleged the firm and its clients had engaged in the wrongful use of civil proceedings and abuse of process when they filed antitrust claims in federal court.

Senior Judge James J. Fitzgerald III, writing for the court, said Tereshko, following an in camera review, improperly ordered Kaplin Stewart to hand over the requested documents without addressing either the applicability of the attorney-client privilege and work-product doctrine or the fact that the parties had a court-enforced clawback agreement in place that permitted the production of documents without the intent to waive privilege and required that any mistakenly produced documents be returned.

Instead, Fitzgerald said, Tereshko merely focused on the documents' relevance to the claims set forth in the Philadelphia trial court action.

"Moreover, the broad, generalized nature of the court's rationale necessarily precluded individualized explanations as to why the attorney-client privilege or work-product doctrine did not apply to a particular document or discrete category of closely related documents," Fitzgerald said. "Absent any such meaningful discussion, this court is unable to ascertain whether the trial court properly compelled the production of these documents."

The court remanded the case to the trial court to re-examine the documents within the context of the attorney-client privilege and work-product doctrine, as well as the clawback agreement.

Fitzgerald was joined by Judges Kate Ford Elliott and Sallie Updyke Mundy.

In de Botton, according to Fitzgerald, defendants Kaplin Stewart and its clients BPG Real Estate Investors, Campus Investors Office B, Campus Investors 25, Campus Investors I Building, Campus Investors H Building, Campus Investors D Building, Campus Investors Cottages, Campus Investors Office 2B, Ellis Preserve Owners Association, Kelly Preserve Owners Association, Cottages at Ellis Owners Association, Genber/Management Campus, Berwind Property Group, Executive Benefit Partnership Campus, Management Partnership Benefit, and Ellis Acquisition—collectively referred to in the opinion as "BPG"—originally filed two antitrust claims against plaintiffs Claude de Botton, Newtown Square East, National Developers and Newtown G.P.—collectively referred to as "de Botton"—in the U.S. District Court for the Eastern District of Pennsylvania.

The federal suit alleged attempted monopolization under Section 2 of the Sherman Act and antitrust conspiracy under Section 1 of the Sherman Act, claiming de Botton took illegal steps to thwart BPG's efforts to develop land in the Philadelphia suburb of Newtown Township, Fitzgerald said.

The suit also alleged state claims of business disparagement, tortious interference, abuse of process and civil conspiracy, according to Fitzgerald.

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