work product doctrine in Pennsylvania

2026See generally Commonwealth v. Kennedy, 876 A.2d 939, 946-49 (Pa. 2005) (reviewing generally the requirements and limitations of Pa.R.Crim.P. 573(C) and its interaction with the work-product doctrine).

2020See Commonwealth v. Kennedy, 876 A.2d 939 (Pa. 2005) (finding that where issue implicates the work-product doctrine, impacts other litigants, and affects the manner in which defense attorneys prepare for trial, the issue satisfies the second prong).

2021See Gillard v. AIG Insurance Company, 15 A.3d 44 , 55 n.16 (Pa. 2011); Gocial v. Independence Blue Shield, 827 A.2d 1216, 1222 (Pa. Super. 2003) (referring to both the work-product doctrine and the work-product privilege).

2021See Gillard v. AIG Insurance Company, 15 A.3d 44 , 55 n.16 (Pa. 2011); Gocial v. Independence Blue Shield, 827 A.2d 1216, 1222 (Pa. Super. 2003) (referring to both the work-product doctrine and the work-product privilege).

2022In Bousamra, the Supreme Court held that “the work product doctrine is waived when the work product is shared with an adversary, or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.” Bousamra, 210 A.3d at 978 .

2022No. 13.) “It was an effort to ascertain the nature of the problem so a course of action forward in design and construction could be determined.” (Id.) In concluding that the GBBE Report was not protected from discovery, the Master stated that “[t]he fact that it was shared with all the parties reinforces my conclusion that it is not protected . . . .” (Id.) The parties disagree as to how and when Liokareas obtained the GBBE Report, which the School District shared with other project participants and Liokareas attached as an exhibit to its second amended complaint.10 The School District argues

2022The Work Product Doctrine The United States Supreme Court has referred to the work product doctrine as a “qualified privilege for certain materials prepared by an attorney ‘acting for his client in anticipation of litigation.’” United States v. Nobles, 422 U.S. 225 , 237-38 (1975) (citation omitted).

2022The Work Product Doctrine The United States Supreme Court has referred to the work product doctrine as a “qualified privilege for certain materials prepared by an attorney ‘acting for his client in anticipation of litigation.’” United States v. Nobles, 422 U.S. 225, 237-38 (1975) (citation omitted).

2022This Court has explained: “Whether the attorney-client privilege or the work product doctrine protects a communication from disclosure is a question of law.” In re Thirty-Third Statewide Investigating Grand Jury, 624 Pa. 361 , [379,] 86 A.3d 204, 215 (2014).

2022This Court has explained: “Whether the attorney-client privilege or the work product doctrine protects a communication from disclosure is a question of law.” In re Thirty-Third Statewide Investigating Grand Jury, 624 Pa. 361 , [379,] 86 A.3d 204, 215 (2014).

2021“The work product doctrine is one of the most fundamental tenets of our system of jurisprudence.” Commonwealth v. Williams, 86 A.3d 771, 782 (Pa. 2014) (citation omitted). -4- J-E01012-20 omitted).

2019Compare Commonwealth v. Williams, 86 A.3d 771 (Pa. 2014) (allowing a Commonwealth appeal of a PCRA discovery order that purportedly infringed on the work-product doctrine).

2019Turning to the issue of waiver of the work product doctrine, 1 the starting point *988 must be this Court's recognition in Lepley v. Lycoming County Court of Common Pleas , 481 Pa. 565 , 393 A.2d 306 (1978) that work product is "not protected against compelled disclosure by a Constitutional, statutory, or common-law privilege[.]" Id. at 310.

2019Turning to the issue of waiver of the work product doctrine, 1 the starting point *988 must be this Court's recognition in Lepley v. Lycoming County Court of Common Pleas , 481 Pa. 565 , 393 A.2d 306 (1978) that work product is "not protected against compelled disclosure by a Constitutional, statutory, or common-law privilege[.]" Id. at 310.

2026See Veloric v. Doe, 123 A.3d 781, 786 (Pa. Super. 2015) (The Fifth Amendment privilege “is protected under both the United States and Pennsylvania Constitutions . . . and is so engrained in our nation that it constitutes a right deeply rooted in public policy.”) (internal quotations omitted); Commonwealth v. Dennis, 859 A.2d 1270, 1278 (Pa. 2004) (finding that a discovery order compelling the production of defense notes taken during jury selection to be a collateral order because the question of privilege involving the work-product doctrine involved one of the most fundamental tenets of our sy

2016As we established in Harris , discovery orders rejecting claims of privilege and requiring disclosure constitute collateral orders that are immediately appealable under Rule 313. 32 A.3d at 251 (“[W]e reaffirm our holding in Ben [v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999) ], that orders overruling claims of privilege and requiring disclosure are immediately appealable under Pa.R.A.P. 313.”); see also Williams, 86 A.3d at 780 (“This Court has moved towards a category-wide exception to discovery orders that are alleged to violate a protected privilege, such as the attorney-client privilege or

2026See Veloric v. Doe, 123 A.3d 781, 786 (Pa. Super. 2015) (The Fifth Amendment privilege “is protected under both the United States and Pennsylvania Constitutions . . . and is so engrained in our nation that it constitutes a right deeply rooted in public policy.”) (internal quotations omitted); Commonwealth v. Dennis, 859 A.2d 1270, 1278 (Pa. 2004) (finding that a discovery order compelling the production of defense notes taken during jury selection to be a collateral order because the question of privilege involving the work-product doctrine involved one of the most fundamental tenets of our sy

2016Indeed, we have characterized the work product doctrine as “one of the most fundamental tenets of our system of jurisprudence.” Commonwealth v. Dennis, 580 Pa. 95 , 859 A.2d 1270, 1278 (2004).

2005“It promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.” (citations omitted) Commonwealth v. Noll, 443 Pa. Super. 602, 608 , 662 A.2d 1123, 1126 (1995) (prohibiting the Commonwealth from using an expert hired by the attorney for the defendant): “As attorneys must often rely on the assistance of investigators and other agents in the compilation of materials necessary for trial, the doctrine protects materials prepared by agents for the attorney, as well as those prepared by the attorney himself.” Id. (cita

2005“It promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.” (citations omitted) Commonwealth v. Noll, 443 Pa. Super. 602, 608 , 662 A.2d 1123, 1126 (1995) (prohibiting the Commonwealth from using an expert hired by the attorney for the defendant): “As attorneys must often rely on the assistance of investigators and other agents in the compilation of materials necessary for trial, the doctrine protects materials prepared by agents for the attorney, as well as those prepared by the attorney himself.” Id. (cita

2021Similarly, the trial court, citing T.M., supra, ordered disclosure of Attorney Prince’s work product relied upon by Appellants, concluding that the work product privilege is not absolute and items may be deemed discoverable if the “product” sought becomes a relevant issue in the action.

2014See, e.g., T.M. v. Elwyn, Inc., 950 A.2d 1050, 1063 (Pa.Super.2008) (stating that the "court may conduct in camera review of documents identified [ ] to be subject to a privilege, to better analyze the privilege issues, as needed.”); Gocial v. Independence Blue Cross, 827 A.2d 1216, 1223 (Pa.Super.2003) (concluding that given the record as it existed on appeal, remand was necessary for the trial court to review discovery requests in light of the privileges raised by the plaintiff and that "[i]n some instances, in camera review may be required.”); In re Estate of Wood, 818 A.2d 568, 573 (Pa.Sup

2016The United States Supreme Court established the work-product doctrine in Hickman v. Taylor, 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947) to protect the mental impressions, conclusions, notes, memoranda, theories and research of an attorney from disclosure to opposing counsel during discovery.

2016The United States Supreme Court established the work-product doctrine in Hickman v. Taylor, 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947) to protect the mental impressions, conclusions, notes, memoranda, theories and research of an attorney from disclosure to opposing counsel during discovery.

2021See Gillard v. AIG Insurance Company, 15 A.3d 44 , 55 n.16 (Pa. 2011); Gocial v. Independence Blue Shield, 827 A.2d 1216, 1222 (Pa. Super. 2003) (referring to both the work-product doctrine and the work-product privilege).

2021See Gillard v. AIG Insurance Company, 15 A.3d 44 , 55 n.16 (Pa. 2011); Gocial v. Independence Blue Shield, 827 A.2d 1216, 1222 (Pa. Super. 2003) (referring to both the work-product doctrine and the work-product privilege).

2024Levy v. Senate of Pa., 94 A.3d 436, 441 (Pa. Cmwlth. 2014) (Levy 2014).

2017Levy [v. Senate of Pennsylvania, 94 A.3d 436 (Pa. Cmwlth. 2014) ]; Dages v. Carbon County, 44 A.3d 89 (Pa. Cmwlth. 2012).

2016As we established in Harris , discovery orders rejecting claims of privilege and requiring disclosure constitute collateral orders that are immediately appealable under Rule 313. 32 A.3d at 251 (“[W]e reaffirm our holding in Ben [v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999) ], that orders overruling claims of privilege and requiring disclosure are immediately appealable under Pa.R.A.P. 313.”); see also Williams, 86 A.3d at 780 (“This Court has moved towards a category-wide exception to discovery orders that are alleged to violate a protected privilege, such as the attorney-client privilege or

2016As we established in Harris, discovery orders rejecting claims of privilege and requiring disclosure constitute collateral orders that are immediately appealable under Rule 313. 32 A.3d at 251 (“[W]e reaffirm our holding in Ben [v. Schwartz, 729 A.2d 547 (Pa. 1999)], that orders overruling claims of privilege and requiring disclosure are immediately appealable under Pa.R.A.P. 313.”); see also Williams, 86 A.3d at 780 (“This Court has moved towards a category-wide exception to discovery orders that are alleged to violate a protected privilege, such as the attorney-client privilege or the work p

2019“The underlying purpose of the work product doctrine is to guard the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client's case.” Bagwell v. Pennsylvania Dep't of Educ., 103 A.3d 409 , 415– 16 (Pa.Cmwlth.Ct. 2014), appeal denied, 632 Pa. 678 , 117 A.3d 1282 (2015) (quoting Commonwealth v. Sandusky, 70 A.3d 886, 898 (Pa. Super. 2013), appeal denied, 622 Pa. 767 , 81 A.3d 77 (2013)). ____________________________________________ information from the client can an attorney provide relevant and sound legal advice.

2019"The underlying purpose of the work product doctrine is to guard the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client's case." Bagwell v. Pennsylvania Dep't of Educ. , 103 A.3d 409 , 415-16 (Pa.Cmwlth.Ct. 2014), appeal denied , 632 Pa. 678 , 117 A.3d 1282 (2015) (quoting Commonwealth v. Sandusky , 70 A.3d 886 , 898 (Pa. Super. 2013), appeal denied , 622 Pa. 767 , 81 A.3d 77 (2013) ).

2020Our standard of review is de novo and our scope of review is plenary.” Estate of Paterno, 168 A.3d at 198 (citations omitted). - 16 - J-A14040-20 West Penn, as the party invoking the work product doctrine, must establish that it properly invoked the doctrine concerning the photographs taken by Holmes and Gillott.

2019See Estate of Paterno v. NCAA , 168 A.3d 187 , 200 (Pa. Super. 2017) (noting "the Rule does not limit work product protections to materials prepared in anticipation [of litigation]."); Bagwell v. Pa. Dept. of Educ. , 103 A.3d 409 , 416 (Pa. Cmwlth. 2014) ("The anticipation of litigation part of the work-product doctrine is not an absolute requirement[.]").

2020See McIlmail, 189 A.3d at 1107-08 (concluding that documents requested from the Archdiocese’s private investigator—notes and summaries of witness interviews—were not protected by the work product doctrine, because they “relate[d] solely to factual information obtained by the investigator from a potential witness[.]”); see also id. (stating that an expansion of the work product doctrine to include the investigator’s interview notes, which did not contain mental impressions, conclusions or opinions, as described in Rule 4003.3, “could potentially corrode the clear distinction that the Rule makes

2020See McIlmail, 189 A.3d at 1107-08 (concluding that documents requested from the Archdiocese’s private investigator—notes and summaries of witness interviews—were not protected by the work product doctrine, because they “relate[d] solely to factual information obtained by the investigator from a potential witness[.]”); see also id. (stating that an expansion of the work product doctrine to include the investigator’s interview notes, which did not contain mental impressions, conclusions or opinions, as described in Rule 4003.3, “could potentially corrode the clear distinction that the Rule makes

2025House Council, 231 A.3d 884, 888 (Pa.Super. 2020).

2023House Council, 231 A.3d 884, 888 (Pa. Super. 2020) (citation omitted).

2018See also Pa.R.A.P. 313 (defining collateral order); Estate of Paterno v. National Collegiate Athletic Association (NCAA), 168 A.3d 187 (Pa.Super. 2017) (explaining general rule that discovery orders compelling disclosure of potentially confidential and privileged materials are immediately appealable as collateral to principal action); Berkeyheiser v. A–Plus Investigations, Inc., 936 A.2d 1117, 1126 (Pa.Super. 2007) (recognizing that appellant’s “colorable claim” of attorney/client privilege and work product doctrine can 2 In a footnote of her brief, Appellant mentions the court’s application o

2015See Commonwealth v. Dennis, 580 Pa. 95 , 859 A.2d 1270, 1278 (2004) (finding a discovery order compelling the production of defense notes taken during jury selection process was a collateral order where the question of privilege involving the work-product doctrine involved one of the most fundamental tenets of our system of jurisprudence, deeply rooted in public policy); Ben v. Schwartz, 556 Pa. 475 , 729 A.2d 547, 552 (1999) (determination as to whether investigative files of Bureau of Professional and Occupational Affairs “are subject to any executive or statutory privilege implicates rights

2020In Hetzel, a defendant in a murder case challenged the validity of a search warrant “which sought from [a] forensic odontologist … all photographs, tracings or diagrams of a bite mark on [the defendant].” Hetzel, 822 A.2d at 756 (internal quotation marks omitted).

2014The work-product doctrine also “protects materials prepared by agents for the attorney.” Kennedy, 876 A.2d at 945 (quoting U.S. v. Nobles, 422 U.S. 225, 239 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975)); Commonwealth v. Hetzel, 822 A.2d 747, 757 (Pa.Super.2003).

2019But see Sedat, Inc. [ v. Department of Environmental Resources , 163 Pa.Cmwlth. 29 , 641 A.2d 1243 , 1245 (1994) ] (holding that "anticipation of litigation is not a prerequisite to the application of the work product doctrine as it pertains to the work product of attorneys acting in their professional capacity.").

2019But see Sedat, Inc. [ v. Department of Environmental Resources , 163 Pa.Cmwlth. 29 , 641 A.2d 1243 , 1245 (1994) ] (holding that "anticipation of litigation is not a prerequisite to the application of the work product doctrine as it pertains to the work product of attorneys acting in their professional capacity.").

2014See, e.g., T.M. v. Elwyn, Inc., 950 A.2d 1050, 1063 (Pa.Super.2008) (stating that the "court may conduct in camera review of documents identified [ ] to be subject to a privilege, to better analyze the privilege issues, as needed.”); Gocial v. Independence Blue Cross, 827 A.2d 1216, 1223 (Pa.Super.2003) (concluding that given the record as it existed on appeal, remand was necessary for the trial court to review discovery requests in light of the privileges raised by the plaintiff and that "[i]n some instances, in camera review may be required.”); In re Estate of Wood, 818 A.2d 568, 573 (Pa.Sup

2013In light of our discussion infra, we need not address this issue further; however, we note that, in In re Estate of Wood, 818 A.2d 568 (Pa.Super.2003), where an attorney who had represented the deceased was ordered to disclose certain reports in estate litigation among the deceased's surviving daughters, we implicitly recognized an attorney is also a holder of the privilege under the work-product doctrine. .

2019"The underlying purpose of the work product doctrine is to guard the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client's case." Bagwell v. Pennsylvania Dep't of Educ. , 103 A.3d 409 , 415-16 (Pa.Cmwlth.Ct. 2014), appeal denied , 632 Pa. 678 , 117 A.3d 1282 (2015) (quoting Commonwealth v. Sandusky , 70 A.3d 886 , 898 (Pa. Super. 2013), appeal denied , 622 Pa. 767 , 81 A.3d 77 (2013) ).

2019See Estate of Paterno v. NCAA , 168 A.3d 187 , 200 (Pa. Super. 2017) (noting "the Rule does not limit work product protections to materials prepared in anticipation [of litigation]."); Bagwell v. Pa. Dept. of Educ. , 103 A.3d 409 , 416 (Pa. Cmwlth. 2014) ("The anticipation of litigation part of the work-product doctrine is not an absolute requirement[.]").

2021Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 32 A.3d 800 , 811–812 (Pa. Super. 2011) (quotation marks omitted), aff’d, 91 A.3d 680 (Pa. 2014).

2019See Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity , 625 Pa. 301 , 91 A.3d 680 , 686 (2014) (Opinion Announcing the Judgment of the Court) ("[T]he work product protection supports our judicial system based on the adversarial process by allowing counsel privacy to develop ideas, test theories, and explore strategies in support of the client's interest, without fear that the documents in which the ideas, theories and strategies are written will be revealed to the opposing counsel."). 1 Effectively adopting Section 91 of the American Law Institute's Restatement (Third) of the Law Go

2019See, e.g., Commonwealth v. Kennedy, 876 A.3d 939 , 948 (Pa. 2005) (emphasis added) (indicating that the work product doctrine “promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients”) (quoting Westinghouse Electric Corporation v. Republic of the Philippines, 951 F.2d 1414 , 1428 (3d Cir. 1991)); Lepley v. Lycoming County Court of Common Pleas, 393 A.2d 306, 310 (Pa. 1978) (“At its core, the work-product doctrine shelters the mental impressions of the attorney, providing a privileged area within which he can a

2019See, e.g. , Commonwealth v. Kennedy , 583 Pa. 208 , 876 A.3d 939 , 948 (2005) (emphasis added) (indicating that the work product doctrine "promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients") (quoting Westinghouse Electric Corporation v. Republic of the Philippines , 951 F.2d 1414 , 1428 (3d Cir. 1991) ); Lepley v. Lycoming County Court of Common Pleas , 481 Pa. 565 , 393 A.2d 306 , 310 (1978) ("At its core, the work-product doctrine shelters the mental impressions of the attorney, providing a privileged

2017Instead of confidential communications with the client, the work-product doctrine protects “mental impressions, theories, notes, strategies, research and the like created by an attorney in the course of his or her professional duties.” Heavens, 65 A.3d at 1077 (emphasis added).

2014We further concluded that DEP met its burden of proving that other documents were protected by the work-product doctrine by submitting privilege logs and affidavits, which demonstrated that the documents “reflected counsel’s opinions concerning DEP’s legal actions following the well fire.” Id. at 1077 .

2019Counsel , 564 Pa. 482 , 769 A.2d 449 , 460 n.16 (2001) (noting "we decline to undertake an assessment of the appropriate waiver analysis generally applicable to the work product doctrine in Pennsylvania.").

2019Counsel , 564 Pa. 482 , 769 A.2d 449 , 460 n.16 (2001) (noting "we decline to undertake an assessment of the appropriate waiver analysis generally applicable to the work product doctrine in Pennsylvania.").