Wade Clark Mulcahy LLP

<p style="text-align: justify;">On June 25, 2021, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/07/Fisher-v.-Erie-Ins.-Exchange.pdf">Fisher v. Erie Ins. Exchange</a></em>, the Superior Court clarified when a party had an immediately appealable right, pursuant to Pa.R.A.P. 313, concerning the forced production of discovery materials for which a party asserts a privilege that the court denies. Typically, for an order to be considered a collateral order and therefore immediately appealable under Pa.R.A.P. 313, it must meet three separate prongs: (1) it is collateral to the main cause of action since it may be analyzed without analyzing the central issues of the case; (2) it implicates important rights too important to be denied review; and (3) such important rights will be lost if review is postponed. Here, in <em>Fisher</em>, the dispute centered around attorney-client privilege and production of documents for <em>in camera</em> review – but not to the opposing party - in which Erie asserted said privilege. Specifically, after a discovery dispute, Erie asserted privilege and withheld production of documents, while Fisher filed a motion to compel said production. After a hearing, the trial Court required Erie to produce the documents for <em>in camera</em> review. This appeal followed.</p>
<p style="text-align: justify;">The only issue on appeal was the third prong as to whether the discovery order was a collateral order and therefore immediately appealable, i.e., where an important right will be lost if review is postponed. The critical question was whether production to a court for <em>in camera</em> review would also equate to the loss of an important right – here, the attorney-client privilege. Specifically, case law is clear that the production of documents, for which a party asserts attorney client privilege, and is compelled to produce, satisfies prong three. However, if the production is only required to be produced to a court for an <em>in camera</em> review, the question became: does this still qualify as a “lost” right? The <em>Fisher</em> Court answered in the negative.</p>
<p style="text-align: justify;">The trial court held, and the appellate court agreed, that Erie’s objections were boilerplate objections and the trial court was well within its discretion to review the documents to assess whether the asserted privilege was valid. Ultimately, the Superior Court determined that an <em>in camera</em> review does not satisfy the third prong of the collateral order test, as the adverse party will not have the contested documents. Moreover, if the trial court ordered the production of the disputed documents to an adverse party, Erie would then have had the opportunity to appeal said order.</p>
<p style="text-align: justify;">This case stands for the propositions that specific objections should be asserted and a court reviewing documents itself does not result in an irrevocable “lose” of rights.</p>
<p style="text-align: justify;">Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>