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Pennsylvania defies U.S. Supreme Court and allows immediate appeals of discovery order regarding privilege

February 17, 2012

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In November 2011, the Pennsylvania Superior Court decided in <em>Com. v. Harris</em>, 32 A.3d 243, 247-251, 2011 WL 5964550, 3 (Pa. - 7 (Pa. (Pa.,2011), that orders rejecting claims of privilege and requiring disclosures are immediately appealable.   As a general rule, Pennsylvania law permits only appeals from final orders. <em>See</em> Pa.R.A.P. 341 (“[A]n appeal may be taken as of right from any final order.”).  However the court will allow an immediate appeal if the question is collateral to the main cause of action, the right involved is too important to be denied review; and (3) the claim will be irreparably lost if the review is postponed until after final judgment. Pa.R.A.P. 313(b). In 1999, the Pennsylvania Supreme Court determined that orders overruling claims of privilege and requiring disclosures were immediately appealable based upon 313(b).  <em>See </em><em>Ben v. Schwartz,</em> 556 Pa. 475, 729 A.2d 547 (1999)<em>.</em><strong></strong>
However, recently, in <em>Mohawk Industries, Inc. v. Carpenter</em>, 130 S.Ct. 599 (U.S.,2009), the United States Supreme Court reached the contrary result. The Supreme Court held that rulings adverse to the attorney-client privilege are not eligible for collateral order appeals because such orders are not effectively unreviewable after final judgment. <em>Id.</em> at 606. It stated that even if disclosure is improper, a litigant request a new trial.
Despite <em>Mohawk</em>, the court in <em>Com v. Harris</em> decided not to overturn its interpretation of Rule 313(b).  Starting that “we are particularly unconvinced that an appeal after final judgment is an adequate vehicle for vindicating a claim of privilege”, the court decided that the frank discussions fostered by privilege rules should be protected as a matter of public policy. <em>Com</em>. at 249.   As such, Pennsylvania will continue to allow issues of privilege to be immediately appealable as of right.

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