Cascades Tissue Group v. Reading Blue Mountain

• Court: Superior Court of Pennsylvania
• Decided: February 19, 2020
• Docket: 1476 MDA 2019
• Status: Unpublished

Opinion

J-A07016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CASCADES TISSUE GROUP : IN THE SUPERIOR COURT OF PENNSYLVANIA, A DIVISION OF : PENNSYLVANIA CASCADES HOLDING US INC., : RITCHIE KARUZIE AND STANLEY : MAZALESKI, III : : : v. : : No. 1476 MDA 2019 : READING BLUE MOUNTAIN AND : NORTHERN RAILROAD COMPANY : : : APPEAL OF: CASCADES TISSUE : GROUP PENNSYLVANIA, A DIVISION : OF CASCADES HOLDING US INC. :

Appeal from the Order Entered August 15, 2019 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 3021-CV-2018

CASCADES TISSUE GROUP : IN THE SUPERIOR COURT OF PENNSYLVANIA, A DIVISION OF : PENNSYLVANIA CASCADES HOLDING US INC. : : Appellant : : : v. : : No. 1479 MDA 2019 : READING BLUE MOUNTAIN AND : NORTHERN RAILROAD COMPANY :

Appeal from the Order Entered August 8, 2019 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2018-03021

BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 19, 2020 J-A07016-20

Appellant, Cascades Tissue Group Pennsylvania, appeals from the

Orders entered in the Lackawanna County Court of Common Pleas on August

8, 2019, and August 15, 2019, compelling Pierre Brochu and Annie Buzzanga

to appear for depositions. Following careful review, we are constrained to

quash these consolidated appeals.

Briefly, this matter involves a property dispute concerning two railroad

crossings near a paper mill owned by Appellant in Ransom Township,

Lackawanna County. Appellee, Reading Blue Mountain and Northern Railroad

Company, sought to depose Appellant’s parent company’s in-house attorneys

Brochu and Buzzanga. On August 8, 2019, the trial court granted Appellees’

Motion to Compel Brochu’s oral deposition. On August 15, 2019, the trial

court denied Appellant’s Motion for a Protective Order, which reiterated the

court’s Order concerning Brochu, and compelled Buzzanga’s appearance at a

deposition. This appeal followed.

Appellant raises four issues on appeal.

1. Whether the [t]rial [c]ourt erred in granting a motion to compel the deposition of in-house counsel when the party seeking to depose the attorneys failed to present the [t]rial [c]ourt with any basis for such an extraordinary discovery order[?]

2. Whether the [t]rial [c]ourt erred in denying a motion for protective order to prohibit the deposition of in-house counsel for a corporate party, where a protective order is required to safeguard the attorney-client privilege and information subject to protection under the work product doctrine[?]

3. Whether a party seeking to depose an attorney for an adverse party must demonstrate a compelling need for the testimony of the attorney and that the information sought from the

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attorney is not otherwise available from a non-privileged source[?]

4. Whether [Appellee] failed to demonstrate any need for the testimony of []Appellant’s in-house counsel, or that the information it sought from []Apppellant’s lawyers could not be obtained from a non-privileged source[?]

Appellant’s Brief at 7.

Each of Appellant’s issues challenge the trial court’s Orders based on an

assertion of an attorney-client and work product privilege. However, before

we address the merits of Appellant’s claims, we must determine whether the

trial court’s Orders are appealable. In re Miscin, 885 A.2d 558, 560-61 (Pa.

Super. 2005). “The question of the appealability of an order goes directly to

the jurisdiction of the Court asked to review the order.” Moyer v. Gresh, 904

A.2d 958, 963 (Pa. Super. 2006) (citation omitted).

Generally, “unless otherwise permitted by statute, only appeals from

final orders are subject to appellate review.” Commonwealth v. Sartin, 708

A.2d 121, 122 (Pa. Super. 1998) (citation omitted). In relevant part,

Pennsylvania Rule of Appellate Procedure 341 defines a “final order” as any

order that “disposes of all claims and of all parties.” Pa.R.A.P. 341(b)(1).1

The discovery Orders at issue here are not final orders as they do not

dispose of all claims and of all parties, nor are they appealable as of right

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1Rule 341 also defines a “final order” as any order “entered as a final order pursuant to [Pa.R.A.P. 341(c)].” Pa.R.A.P. 341(b)(3).

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pursuant to Pa.R.A.P. 311.2 Appellants did not ask for or receive permission

to appeal the Orders pursuant to Pa.R.A.P. 312.3 Thus, the question before

this Court is whether the Orders in this case are appealable under the

collateral order doctrine. See Pa.R.A.P. 313.

Pennsylvania Rule of Appellate Procedure 313 defines a collateral order

as one that: “1) is separable from and collateral to the main cause of action;

2) involves a right too important to be denied review; and 3) presents a

question that, if review is postponed until final judgment in the case, the claim

will be irreparably lost.” In re Bridgeport Fire Litigation, 51 A.3d 224, 230

n.8 (Pa. Super. 2012) (citation omitted); Pa.R.A.P. 313(b). Our Supreme

Court has emphasized that:

the collateral order doctrine is a specialized, practical application of the general rule that only final orders are appealable as of right. Thus, Rule 313 must be interpreted narrowly, and the requirements for an appealable collateral order remain stringent in order to prevent undue corrosion of the final order rule. To that end, each prong of the collateral order doctrine must be clearly present before an order may be considered collateral.

Melvin v. Doe, 836 A.2d 42, 46-47 (Pa. 2003) (internal citations omitted).

A discovery order is collateral and “separable” from the main cause of

action if it is capable of review without considering the underlying merits of

the case. See Ben v. Schwartz, 729 A.2d 547, 551-52 (Pa. 1999) ____________________________________________

2 Pa.R.A.P. 311 enumerates those kinds of orders that are, despite being interlocutory, appealable as of right. Pa.R.A.P. 311. Discovery orders are not included in the enumeration of orders recognized as interlocutory but appealable as of right.

3 Pa.R.A.P. 312 provides for appeals from interlocutory orders by permission.

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(concluding that the Bureau of Professional and Occupational Affairs’ claims of

privilege with respect to its investigative file were analytically separate from

the underlying claim of dental malpractice). See also Commonwealth v.

Blystone, 119 A.3d 306, 312 (Pa. 2015) (citation omitted) (stating that the

claim raised in the interlocutory appeal must be “conceptually distinct from

the merits of the plaintiff’s claim”).

The underlying litigation involves a property dispute over Appellant’s

alleged right to the use of two railroad crossings. The matter before this Court

is whether Appellant’s corporate employees—Brochu and Buzzanga—should

be precluded from appearing at depositions because they are Appellant’s in-

house counsel and could potentially invoke the attorney-client and work

product privileges. We conclude that we can address the current question

without the need to analyze the central issue of the case. Therefore, this

question is separable from the underlying cause of action, and Appellant has

satisfied the first prong of the collateral order analysis.

We must next consider whether the question before us involves a right

too important to be denied review. A right is too important to be denied review

if it “involves rights deeply rooted in public policy going beyond the particular

litigation at hand.” Jacksonian v. Temple Univ. Health Sys. Found., 862

A.2d 1275, 1280 (Pa. Super. 2004) (citation omitted). Often “[p]rivilege can

be a right too important to be denied review.” Id.

Appellant does not assert that, at this juncture, Appellee has sought any

privileged information from Appellant’s in-house counsel. Rather, Appellant

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asserts that a blanket, prospective attorney-client privilege applies to both

Brochu and Buzzanga because they obtained information about this matter

through conversations with Appellant’s employees in order to provide legal

advice and guidance to Appellant in connection with this litigation. Appellant’s

Brief at 24. Essentially, Appellant argues that the attorney-client and work

product privileges attach to Brochu and Buzzanga prospectively because there

are no questions Appellee could ask them the answers to which would not be

privileged. Additionally, Appellant represents that the trial court’s Orders

involve a right too important to be denied immediate review because: (1)

Appellee did not indicate the topic or scope of testimony sought from them;

(2) Appellee did not articulate a compelling need for information from them;

and (3) Appellee did not seek the deposition of a corporate designee of

Appellant who could testify to non-privileged facts. Id. at 25-26.

In denying Appellant’s Motion for a Protective Order, the trial court

opined as follows:

[Appellant’s] Motion for a Protective Order asks the [c]ourt to accept that blanket attorney-client privilege and work[]product protection exist due to a witness’s status as a member of the legal profession. As noted in the [c]ourt’s August 15, 2019 Order, [Appellant’s] argument requires a clairvoyance by [Appellant’s] counsel because it requires him to be able to discern all questions which will be asked by opposing counsel before any oral examination has taken place. This clairvoyance would also be needed to assess in advance each and every communication as explicitly protected by the attorney-client privilege or the work product doctrine without any advance knowledge of the questions being asked, or information being sought. Further, a blanket protective order shielding [Brochu and Buzzanga] potentially prohibits [Appellee] from asserting any alleged exceptions or

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waiver in the context of an oral discovery deposition and [from] potentially obtaining relevant, non-privileged information from these witnesses.

[Appellant’s] counsel, in their arguments, clearly has attempted to usurp the [c]ourt’s function to decide privilege or protection as a question of law and attempts to make it a blanket privilege that can never be reviewed by this [c]ourt because, in the exercise of his clairvoyance, counsel has already decided the questions of law at issue with regard to attorney-client privilege and work product doctrine.

Trial Ct. Op., 11/12/19, at 10.

We agree with the trial court. Notwithstanding Appellant’s assertion

that the trial court’s Orders are collateral, our review of the Orders indicate

that they do not compel production of privileged information or documents.4

Rather, they merely compel the appearance at a deposition of Appellant’s

corporate in-house counsel, from whom Appellee may ultimately seek to

obtain non-privileged testimony and evidence. Appellant’s challenge to the

trial court’s Orders compelling Appellant’s in-house counsels’ appearances at

depositions fails to satisfy the second prong of the collateral order doctrine.

The final prong of the collateral order doctrine requires us to consider

whether, if we postpone review of Appellant’s privilege claim until final

judgment in the case, the claim will be irreparably lost. We conclude that,

because the court has not ordered Appellant’s to produce any identifiably ____________________________________________

4 In fact, Appellant conceded the speculative nature of its privilege claims. See Notice of Appeal, 9/12/19 (describing the ordered depositions as “risk[ing] the discovery of confidential attorney-client communications and/or information that is protected from disclosure by the attorney work product doctrine.”) (emphasis added).

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privileged information, Appellant’s premature claim will not be lost if we

postpone review. Appellant will not lose the right to protect privileged

information if we decline to review Appellant’s claim now because Appellant

has the opportunity to object to specific questions posed at Brochu’s and

Buzzanga’s depositions, and can seek review of any future orders that actually

compel production of purportedly privileged materials.

Accordingly, we conclude that this Court is without jurisdiction to review

these Orders. We, thus, quash these appeals.

Appeals quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/19/2020

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