J-A23040-24
2025 PA Super 8
CAROL KING, INDIVIDUALLY, AND : IN THE SUPERIOR COURT OF AS ADMINISTRATOR OF THE ESTATE : PENNSYLVANIA OF JUSTIN P. KING, DECEASED : : : v. : : : KAPPA SIGMA FRATERNITY, ALPHA : No. 55 MDA 2024 SIGMA TAU SORORITY, KENNETH : BELL, BRADLEY BRODZICK, : NICHOLAS COLANTINO, JR., : BENJAMIN CONFER, ADAM : HAYDUCEK, CIAN KELLETT, MICHAEL : KUPRESS, CESAR LABOY, BENJAMIN : PACKER, JUSTIN ROMANO, ALLAN : SCHAIBLE, ALEXANDER SCHEEL, : DEREK SHAPIRO, NATHAN : SLEDZIEWSKI, JOHN : STAUFFENBERG, RICHARD YI, : CAITLYNN ALBRIGHT, VICTORIA : BANKS, LINDSEY DEDICS, DANA : DOIMI, CARRISSA DONNELLY, : DANIELLE GODORECCI, KAITLYN : GRIFFITH, ALEXA HADY, RACHEL : JEFFERS, SHELBY KENNEDY, SARA : KERVICK, DANIELLE MAUCERI, : JOCELYN MORGAN, TAYLOR : ROBERTS, CARA THOMAS, JULIA : TRAINER, SARA WECH, JESSICA : WESTENBERGER, TAYLOR WILLIAMS, : AND KELSEY ZOLA : : : APPEAL OF: ALPHA SIGMA TAU : SORORITY :
Appeal from the Order Dated December 6, 2023 In the Court of Common Pleas of Luzerne County Civil Division at No: 2021-01858 J-A23040-24
BEFORE: OLSON, J., STABILE, J., and STEVENS, P.J.E.*
OPINION BY STABILE, J.: FILED JANUARY 13, 2025
This interlocutory appeal concerns whether 48 pages of handwritten
interview notes taken by representatives of Alpha Sigma Tau Sorority (“AST”)
are subject to disclosure to the plaintiff in the underlying action, Carol King,
individually and as administrator of the Estate of Justin P. King, deceased
(“Plaintiff”). Finding that the trial court did not commit an error of law or
abuse its discretion by ordering the notes to be partially redacted and
disclosed to Plaintiff, we affirm.
In 2019, Justin P. King (the decedent) attended a sorority party thrown
by the Beta Nu Chapter of AST at Bloomsburg University, where the decedent
was a freshman. It is alleged by Plaintiff that after being urged by sorority
members to drink several highly alcoholic beverages, the decedent got lost on
campus and fell down a steep slope, resulting in fatal injuries. The Beta Nu
Chapter was suspended by the university due to the role its members had in
that incident.
Plaintiff filed suit in 2021, alleging that AST, and its members who
attended the party at the Beta Nu Chapter house, were liable for the
decedent’s death. In the ensuing litigation, Plaintiff learned that, soon after
the incident, but before the suit was filed, AST’s representatives had
interviewed 15 of its members who were present at the Beta Nu Chapter party.
All of those members were later named as AST’s co-defendants in Plaintiff’s ____________________________________________
* Former Justice specially assigned to the Superior Court.
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action, and each of them attended their respective interviews with their own
counsel.
On May 2, 2023, Plaintiff filed requests for production so that it could
obtain from AST any documentation of the interviews that AST had conducted
with its members – this included the handwritten interview notes at issue in
the present appeal. As to those notes, AST objected that they were not
subject to disclosure under the work-product doctrine and the attorney-client
privilege. AST emphasized that the top of each page of the notes bore the
heading, “Attorney-Client Privilege For Work Product.” Plaintiff responded to
AST’s objection by moving to compel the production of the notes, insisting
that no such protections applied.
On September 8, 2023, the trial court ordered AST to produce a privilege
log, as well as the documents it believed were undiscoverable. No privilege
log was ever provided, but AST did produce 49 pages of notes taken during
the interviews of its members. AST argued at that point that all of the notes
were the work product of its lead counsel in the litigation, John J. Delany, III,
who was present at the interviews.
In an affidavit, another attorney representing AST (Michael Logue)
averred that Pages 1 to 45 of the notes in question were written by AST’s chief
executive officer (CEO), James Paponetti; Pages 46 and 47 were written by
AST’s chief operating officer (COO), Angie Bong; and Page 48 was a sign-in
sheet created to help Mr. Delany to keep track of who had been interviewed.
Neither Mr. Paponetti, nor Ms. Bong, are AST’s legal counsel.
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According to the verification, “Mr. Delany was present [when those
notes were written] to provide [AST] with advice and guidance on the issue of
why the Beta Nu chapter at Bloomsburg University was under interim
suspension as of October 2019, when the interviews in question took place.”
See Trial Court 1925(a) Opinion, 3/5/2024, at Exhibit “E” (Verification of
Michael R. Logue, dated 11/10/2023). The verification does not state whether
the notes were actually conveyed to Mr. Delany, or whether they were
transmitted/communicated to anyone other than AST’s attorneys. See id.1
Following oral argument on the issue, and due to the lack of the
mandated privilege log, the trial court conducted an in camera review of the
notes. This review was limited to determining whether the notes indeed
contained any privileged information, such as legal advice, opinions, or
litigation strategy. On December 6, 2023, the trial court entered an order
directing partial redactions of Pages 1, 3, 4, 5, and 46 of the interview notes.
The entirety of Page 49 was found to be the protected attorney work product
of AST. All unredacted portions of the notes were to be turned over to
Plaintiff.2
In response, AST filed the present interlocutory appeal to challenge the
trial court’s order requiring the production of Pages 1 through 48 of the ____________________________________________
1 The verification did not address Page 49 of AST’s interview notes.
2 As AST is only challenging the required disclosure of the unredacted portion
of the interview notes, the redacted portions are irrelevant for the purposes of this appeal.
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redacted notes to be disclosed. The trial court entered an opinion in
accordance with Pa.R.A.P. 1925(a). Essentially, the trial court rejected AST’s
invocation of the attorney work product doctrine because there was no
indication that the notes were prepared by or at the behest of AST’s counsel,
Mr. Delany. The notes were instead written by AST’s CEO and COO, and the
content of their writings was merely a factual summary of what the
interviewees had stated. See Trial Court 1925(a) Opinion, 3/5/2024, at 7-8.
As to the application of the attorney-client privilege, the trial court ruled
that AST waived the issue by not raising it when the parties argued their
respective positions. The trial court explained further that even if the issue
had been preserved, it would not be availing because AST failed to establish
that the notes contained any private communications between AST and its
counsel which related to facts concerning AST’s legal defense against Plaintiff’s
potential claims. See id., at 9-11.
In its brief, AST now raises two issues:
A. Whether the trial court’s December 6, 2023 Order should be reversed because the court committed an error of law and/or abused its discretion in requiring AST to produce 48 of 49 pages of the documents (subject to limited redactions) referenced in the court’s December 6, 2023 Order, because the production of documents was ordered and required by the court in violation of the attorney work product doctrine recognized by Pa.R.C.P. 4003.3, and the common law pertaining thereto[.]
B. Whether the trial court’s December 6, 2023 Order should be reversed because the court committed an error of law and and/or abused its discretion in requiring AST to produce 48 of the 49 pages of the documents (subject to limited redactions) referenced in the court’s December 6, 2023 Order, because the production of
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documents was ordered and required by the court in violation of the attorney-client privilege as set forth in 42 Pa.C.S. § 5928, and the common law pertaining thereto[.]
Appellant’s Brief, at 10-11 (suggested answers omitted).
AST’s first claim is that the trial court erred in determining that the
redacted version of its interview notes was not protected by the attorney work
product doctrine.
Discovery orders are subject to an abuse of discretion standard of
review. See St. Luke’s Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540
(Pa. Super. 2014). A trial court may abuse its discretion by making a ruling
that is “manifestly unreasonable, arbitrary or capricious; that fails to apply the
law; or that is motivated by partiality, prejudice, bias or ill-will.” Hutchinson
v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005). The
applicability of the work-product doctrine, however, is a pure question of law
that is subject to a de novo standard of review in which no deference is
afforded to the trial court’s decision. See McIlmail v. Archdiocese of
Phila., 189 A.3d 1100, 1107 (Pa. Super. 2018).
Generally, the Pennsylvania Rules of Civil Procedure allow a party to
“obtain discovery regarding any matter, not privileged, which is relevant to
the subject matter involved in the pending action[.]” Pa.R.C.P. 4003.1(a). A
relevant subject matter is one that may relate to any party’s claim or defense.
See id. Parties may therefore invoke Rule 4003.1 to discover “the existence,
description, nature, content, custody, condition and location of any books,
documents, or other tangible things and the identity and location of persons
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having knowledge of any discoverable matter.” Id.; see generally
BouSamra v. Excela Health, 210 A.3d 967, 976-78 (Pa. 2019).
Rule 4003.1 itself contemplates that some materials which are relevant
to a claim or defense may nevertheless be privileged and not subject to
disclosure. See Pa.R.C.P. 4003.1(a). One such exception is the attorney work
product doctrine, which is set forth in Pa.R.C.P. 4003.3. This rule provides
that a party “may obtain discovery of any matter discoverable under Rule
4003.1 even though prepared in anticipation of litigation or trial by or for
another party or by or for that other party’s representative, including his or
her attorney, consultant, surety, indemnitor, insurer or agent. Pa.R.C.P.
4003.3. However, the disclosed material “shall not include . . . the
mental impressions of a party’s attorney or his or her conclusions,
opinions, memoranda, notes or summaries, legal research or legal
theories.” Id. (emphases added).
The doctrine extends – to a lesser degree – to material prepared by
representatives of a party other than the party’s counsel. As to such a person,
“discovery shall not include disclosure of his or her mental
impressions, conclusions or opinions respecting the value or merit of
a claim or defense or respecting strategy or tactics.” Id. (emphasis
added). Thus, while the “notes or summaries” of a party’s attorney may be
absolutely privileged under Pa.R.C.P. 4003.3, the same is not true for those
created by a party’s non-attorney representatives. See id.; see also
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Pa.R.C.P. 4003.3 (Explanatory Comment -1978, at para. 2) (“Memoranda or
notes made by the [non-attorney] representative are not protected”).
The test for invoking the attorney work product doctrine and the
attorney-client privilege is the same, and it is not uncommon for both to be
referred to as “privileges.” See Carlino East Brandywine, L.P. v.
Brandywine Village Assocs., 260 A.3d 179, 196 n.7 (Pa. Super. 2021)
(explaining that referring to the work product doctrine as a privilege is
technically a misnomer because it is embodied in a procedural rule, Pa.R.C.P.
4003.3.).
The party asserting that the work product doctrine (or a privilege)
applies “bears the burden of producing facts establishing proper invocation[.]”
Id., at 196-97. “Once the invoking party has made the appropriate proffer,
then the burden shifts to the party seeking disclosure to set forth facts
showing that disclosure should be compelled either because [the doctrine or]
the privilege has been waived or because an exception . . . applies.” Id.
(quoting Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1019 (Pa. Super.
2015)).
In the present case, the trial court ruled that the redacted version of the
subject interview notes is subject to disclosure under Pa.R.C.P. 4003.3, and
we find no error of law or abuse of discretion in that ruling. The principal basis
for the trial court’s decision was that the interview notes were not created by
or at the behest of AST’s counsel, having been written by AST’s CEO and COO.
Although each page of the notes was styled as “Attorney-Client Privilege For
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Work Product,” the substantive content of the notes did not indicate that they
in fact belonged to AST’s counsel, Mr. Delany, for the purposes of Rule 4003.3.
See Trial Court 1925(a) Opinion, 3/5/2024, at 5-8.
AST has argued that the notes must be considered the work product of
its counsel because Mr. Delany directed AST’s CEO and COO to compile them
for the purpose of preparing for future litigation. AST’s counsel stated further
in a sworn affidavit (verification) that Mr. Delany appeared at the interviews
with AST’s CEO and COO to aid in the legal defense against Plaintiff’s then-
impending lawsuit. See id., at Exhibit “E,” para. 10 (Verification of Michael
R. Logue, dated 11/10/2023).
Yet, AST’s contention rests on a critical and unsubstantiated point of fact
– that Mr. Delaney was ultimately responsible for generating the content of
the notes taken by AST’s non-attorney representatives. The problem with
that argument is that counsel’s role in the creation of the notes is not evident
from the notes themselves, or from any other record evidence.
It is undisputed that Mr. Delany did not write the notes himself. The
content of the redacted version of the notes is exclusively factual, detailing
the questions posed to Beta Nu members about the night of the decedent’s
death, and the answers the members gave. The affidavit submitted by AST’s
counsel, Mr. Logue, nowhere stated that Mr. Delany specifically directed AST’s
CEO and COO about what to write down.
Again, as the party invoking the work product doctrine, the initial burden
was on AST to present facts establishing proper invocation. See Carlino East
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Brandywine, 260 A.3d at 196-97. The trial court found that “AST offered no
proof that the [interview] notes contained counsel's notes, impressions, etc.
that would unconditionally protect the notes from disclosure.” Trial Court
1925(a) Opinion, 3/5/2024, at 8.
Having reviewed the relevant portions of the record, including the
interview notes and the parties’ filings, we are unable to identify any facts
which purport to show that the redacted version of the interview notes was
created at counsel’s direction, such that they would be protected under Rule
4003.3. Nor do the redacted notes reflect any impressions of the AST
representatives who wrote them. Thus, as a matter of law, the trial court did
not err in determining that AST failed to carry its burden of establishing the
facts needed to invoke the work product doctrine, making it inapplicable in
this case.
AST’s second claim is that the trial court erred in determining that its
interview notes were not protected by the attorney-client privilege. At the
outset, we find that AST preserved this issue for appellate review, and did not
waive it as the trial court held. AST asserted the privilege on several, though
not all, occasions when the issue was presented to the trial court, and this
was sufficient for preservation purposes.3
____________________________________________
3 When Plaintiff served its discovery requests, AST objected in part on the ground of attorney-client privilege. AST later attempted to invoke the attorney-client privilege in its response to Plaintiff’s motion to compel discovery, arguably laying out the facts needed to establish the privilege in (Footnote Continued Next Page)
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We now turn to the merit of AST’s claim. The attorney-client privilege
is a statutory right afforded to clients in civil cases. See 42 Pa.C.S.A. § 5928.4
Its purpose is to protect communications between a client and the client’s
legal counsel so that information can be conveyed freely during the
preparation of a legal matter. Section 5928 of the Judicial Code provides that
“counsel shall not be competent or permitted to testify to confidential
communications made to him [or her] by his [or her] client[.]” Id. The client
may also not be compelled to divulge such communications unless the client
waives the privilege. See id.
Our case law is clear that this privilege belongs solely to the client, not
to counsel, and that where the client is a corporate entity, such as AST, the
privilege extends to “communications between [the entity’s] attorneys and
agents or employees authorized to act” on the entity’s behalf. See
BouSamra, 210 A.3d at 983. A client may waive an otherwise privileged
communication by divulging it to a third party. See id., at 984.
This Court has outlined four elements that must be established in order
for the privilege to apply:
Mr. Logue’s affidavit (verification). Finally, AST raised the attorney-client privilege in its 1925(b) statement. Thus, although AST did not focus on this privilege when disputing Plaintiff’s discovery demands in argument before the trial court, the privilege was timely asserted, and not subsequently waived, preserving the issue for appellate review. See Ford-Bey v. Pro. Anesthesia Servs. Of N. Am., LLC., 229 A.3d 984, 990 n.7 (Pa. Super 2020).
4 The analogous provision for criminal cases is codified at 42 Pa.C.S.A. § 5916.
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(1) The asserted holder of the privilege is or sought to become a client.
(2) The person to whom the communication was made is a member of the bar of a court or his subordinate.
(3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
(4) The privilege has been claimed and is not waived by the client.
Ford-Bey v. Pro. Anesthesia Servs. Of N. Am., LLC., 229 A.3d 984, 990-
91 (Pa. Super. 2020) (quoting Yocabet, 119 A.3d at 1027)).
As with the attorney work product doctrine, the party asserting the
attorney-client privilege has the initial burden of showing that the privilege
has been properly invoked. See Ford-Bey, 229 A.3d a 990-91. If the trial
court finds that the proponent of the privilege has set forth facts which make
it applicable, then the burden shifts to the party seeking disclosure of the
communication to produce facts which would make it discoverable. See id.
Here, we agree with the trial court that, as a matter of law, the privilege
did not apply. AST had its CEO, COO, and counsel attend interviews with over
a dozen Beta Nu sorority members. These members were later named as co-
defendants of AST in Plaintiff’s action. The members each appeared at their
interviews with their own attorneys, who were not affiliated with AST. The
content of the redacted version of the subject interview notes was limited to
the questions asked of the members by AST’s CEO, and the answers those
members gave in response.
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AST argues that the notes were nevertheless private “communications”
because they were conveyed from AST’s representatives to AST’s counsel, Mr.
Delany. However, the third element of the above-mentioned test requires the
communication to relate “to a fact of which the attorney was informed by his
client, without the presence of strangers.” See id. (emphasis added). Mr.
Delany was not being confidentially “informed” of any facts by AST’s CEO or
COO when they wrote down the verbal responses given by AST’s members –
those responses were already heard by Mr. Delany and other third parties who
attended the interview. Rather, it was AST’s members who were informing
Mr. Delany of facts in the presence of their own counsel.5
In its brief, AST cites our decision in Farrell v. Regola, 150 A.3d 87
(Pa. Super. 2016), for the proposition that a party’s interview notes are
“absolutely privileged” when taken at the behest of that party’s counsel. While
we acknowledge the panel in Farrell employed that broad language when
discussing the scope of the attorney client privilege, the case does not compel
reversal here because our facts are materially distinguishable.
In Farrell, one of the defendants took handwritten notes both during
depositions in civil proceedings and a related criminal trial. The plaintiffs
moved to compel the production of those notes, and the defendants objected
that they were privileged attorney-client communications. The defendants
produced a detailed privilege log, which stated that the notes were taken at ____________________________________________
5To the extent that any other, privileged information was conveyed to Mr. Delany in the notes, it has already been redacted.
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the direction of counsel for the sole purpose of aiding in the preparation of the
defendants’ cases. See Farrell, 150 A.3d at 102.
Significantly, the log referred to the content of the notes, describing
them as generally containing “questions and observations [a defendant]
shared with his counsel.” Id., at 92 (quoting defendants’ privilege log). The
log provided further that the notes had only been given to counsel, and that
the defendants’ attorneys took possession of them immediately after they
were taken. See id., at 102. We held that since the defendants had asserted
the requisite facts, the notes were “absolutely privileged.” See id.
The present case is distinguishable in two important respects. First, the
absence of a privilege log prompted the trial court and this Court to review
AST’s interview notes, which have been held under seal. It was apparent to
the trial court, as well as this Court, that, unlike in Farrell, the notes here
contained no “questions and observations” of AST which were shared with its
counsel. Put another way, the defendant’s notes in Farrell privately
communicated facts that counsel would not otherwise have been privy to; but
here, AST conveyed no such communications to counsel through the notes of
its CEO and COO, and AST did not state otherwise in its verification.
The second distinction is that the defendant in Farrell attested to the
private and confidential nature of the communications in his notes to counsel.
The holding in Farrell was in part predicated on the fact that the notes, which
contained the defendant’s personal observations, “were provided to counsel
only.” Id., at 92. AST did not, and perhaps could not, attest to that fact in
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this case. Nor did AST state in its verification that its notes remained
confidential, to be used only for the preparation of its legal defense.
For these reasons, we conclude that the communications memorialized
in the redacted version of the interview notes were not privileged
communications made between AST and its counsel. The facts asserted by
AST instead establish that the communications were made by and in the
presence of independent third parties (Beta Nu members) to AST’s
representatives (AST’s CEO, COO, and lead counsel), and that counsel was
not informed of any confidential information through AST’s redacted interview
notes. Thus, the redacted version of the interview notes is discoverable, and
the trial court’s order requiring their disclosure to Plaintiff must be upheld.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 01/13/2025
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