In re Thirty-Third Statewide Investigating Grand Jury, PICS Case No. 14-0252 (Pa. Feb. 18, 2014) Castile, J. (41 pages).

SUPREME COURT

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ADMINISTRATIVE LAW

Discovery • Attorney-Client Privilege • Work Product

In re Thirty-Third Statewide Investigating Grand Jury, PICS Case No. 14-0252 (Pa. Feb. 18, 2014) Castile, J. (41 pages).

The Pennsylvania Supreme Court held that the Dauphin County Court of Common Pleas did not err in determining that the attorney-client privilege and the work product doctrine did not preclude the production of documents by the Pennsylvania Turnpike Commission sought by the Pennsylvania Office of Attorney General in a grand jury proceeding. The Supreme Court further held the commission was not entitled to a privilege log screening process it had proposed.

The OAG had been conducting a statewide grand jury investigation into whether criminal statutes had been violated by the commission, its employees and others, in connection with the commission's employment and procurement practices. During its investigation, the OAG had issued subpoenas to the commission and third parties. The commission produced a substantial number of documents in response to the subpoena, but with regard to certain documents, the commission invoked the protections of the attorney-client privilege and the attorney work product doctrine. The commission sought to negotiate with the OAG for production of the material through the use of a privilege log, but the OAG rejected that proposal. The commission then filed a motion for a protective order with the supervising judge of the grand jury, seeking to prevent disclosure of the allegedly protected materials. The commission argued that it could invoke the attorney-client privilege because such privilege were applicable to all attorneys and their clients, and nothing in Pennsylvania law eliminated or otherwise modified privilege for commonwealth agencies. The OAG argued it was entitled to unfettered access to all requested items and that the attorney-client privilege and work product doctrine did not protect records of a commonwealth agency from a grand jury subpoena.

The supervising judge denied the protective order, concluding that the OAG had the right to access all the requested material. The commission then filed a petition for review. This case did not involve a final order, but the supreme court accepted the commission's petition for review to consider the question of privilege in the context of commonwealth agencies subject to grand jury investigation.

The Supreme Court held that the attorney-client privilege runs to the benefit of the client, but the client in this case was not simply the agency or individual employees of the agency, but rather, the public, whose money was funding the agency's operations. Where the agency itself was being investigated by the commonwealth due to suspicion of wrongdoing, the actual client of the agency's lawyers was the public. The supervising judge did not err in determining the attorney-client privilege did not preclude production of the documents sought by the OAG, nor did it entitle the commission to the privilege log screening process it proposed.

The same rationale applied to the work product doctrine in the context of grand jury proceedings.

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