Newsuan v. Republic Servs. Inc.
| Decision Date | 20 June 2019 |
| Docket Number | No. 1248 EDA 2018,1248 EDA 2018 |
| Citation | 213 A.3d 279 |
| Parties | Karen NEWSUAN v. REPUBLIC SERVICES INC., BFI Waste Services of Pennsylvania LLC, BFI Waste Systems of North America LLC, Joshua Watson, Milton Baker, Christopher Giovetsis, Marc Buckley, Mike Roberts and Chris Jobson, Appellants |
| Court | Pennsylvania Superior Court |
Matthew D. Vodzak, and Teresa F. Sachs, Philadelphia, for appellant.
Peter D. Goldberger, Ardmore, for appellee.
BEFORE: OLSON, J., DUBOW, J., and STEVENS* , P.J.E.
Appellants/Defendants (hereafter "Republic Services") file this interlocutory appeal from an adverse discovery-phase ruling in Appellee/Plaintiff Karen Newsuan's (hereafter "Newsuan") personal injury case in which she alleges that Republic Services' negligence caused her serious worksite injury. At issue is whether the court erred in ruling that neither an attorney-client communications privilege nor an attorney work-product privilege applied to interviews between counsel for Republic Services and 16 non-party Republic Services laborers identified by Newsuan as potential worksite eyewitnesses.
Republic Services claims the privileges attached either because each employee accepted corporate counsel's offer to represent him or her throughout this litigation or, alternatively, because the interviews between its employees and corporate counsel had the singular purpose of preparing it for litigation. In accordance with decisional law recognizing a corporation's privilege over communications solicited from its non-managerial employees by corporate counsel in preparation for trial, we vacate that part of the order requiring disclosure of such communications and corporate counsel's related work product, and we remand for further discovery consistent with this decision.
On August 17, 2015, Karen Newsuan was working for her non-defendant employer as a recycling center facility sorter when a front-end loader crushed her leg, necessitating an above-the-knee amputation. On August 9, 2017, Newsuan commenced a personal injury action against the named defendants claiming their respective negligence as owners, supervisors, or operators caused her injuries.
At the outset of discovery, Newsuan's lawyer asked Republic Services for all contact information and any documented statements of 16 named employees1 who were working at the recycling center on the day she was injured. Newsuan's lawyer considered the 16 employees potential fact witnesses who could testify to both the accident itself and any dangerous conditions, practices, and procedures at the worksite.
Counsel for Republic Services (at times hereinafter, "corporate counsel") did not provide this information. Confronted with Republic Services' consistent refusal to produce employee contact information that it claimed was either irrelevant or privileged, Newsuan filed a Motion to Compel Discovery.
On March 20, 2018, the trial court conducted a hearing, at which corporate counsel began by informing the court that "all of the current [and three of the seven former] employees for Republic Services [who] were working that evening, including the non-supervisory positions, have agreed to be represented by Republic Services as their counsel." N.T. 3/20/18, at 11-12, 14. Corporate counsel, therefore, argued that "Republic Services' representation of the employees" precluded Newsuan from accessing any of them ex parte , pursuant to Pennsylvania Rule of Professional Conduct Rule 4.2.2
Counsel also invoked attorney-client privilege with respect to communications made during his interview with each employee. Newsuan rejoined that Republic Services' actions violated her rights under Pennsylvania Rule of Professional Conduct 3.4, Fairness to Opposing Party and Counsel, which provides, inter alia , that a lawyer shall not unlawfully obstruct another party's access to evidence.
The trial court denied the validity of the purported attorney-client relationship between counsel and the employees. Initially, it opined that Republic Services' counsel had improperly telephoned the prospective witnesses and offered legal services in violation of Pennsylvania Rule of Professional Conduct Rule 7.3.3 Even more concerning to the court, though, was corporate counsel's failure to explain to the employee witnesses the potential conflict that could arise during his dual representation of corporate employer and employee. Citing Pennsylvania Rule of Professional Conduct 1.7, discussed infra in n.4, the court explained:
[Republic Services'] lawyers admitted in court that they did not inform these current and former employees about any potential conflicts the ... lawyers may have in representing the companies being sued and at the same time representing the current or former employee fact witnesses who may have information that is adverse to the companies being sued. The Pennsylvania Rules of Professional Conduct require that when a lawyer represents multiple parties who may have adverse interests or loyalties, the lawyers must disclose the conflict and make sure that all the parties they represent waive any conflict they have. ( [PA ST RPC] 1.7 : Conflict of Interest: Current Clients). The lawyers for [Republic Services] did not explain the potential conflict nor did they get informed consent from these fact witnesses to waive any conflicts.
Trial Court Order, 4/11/18, at ¶ 8.
In light of this record, the trial court viewed counsel's actions with respect to the 16 employees as an unfair discovery tactic designed to prevent Newsuan from freely obtaining statements from fact witnesses:
[Republic Services'] lawyers' conduct in refusing to provide contact information of potential fact witnesses in order to contact them first and then offer to represent them for free, effectively foreclosed [Newsuan's] lawyers from fair access to interview these fact witnesses without having Republic Services' lawyers present. Republic Services' lawyers' conduct compromised the fairness in the litigation process by obstructing Newsuan's lawyers' access to evidence. ( Pennsylvania Rule of Professional Conduct 3.4, Fairness to Opposing Party and Counsel).
The trial court, therefore, entered an order directing Republic Services to perform, inter alia , the following tasks:
Trial Court Order, 4/11/18, at 3-4. The court further directed all counsel to preface any interview of a prospective non-party, fact witness with an advisement that the witness has the right to decline the interview and has no need for a lawyer in this litigation. Id. at 4. In the event of such declination, the court explained, the parties could subpoena such witnesses. Id.
On April 20, 2018, Republic Services filed the instant interlocutory appeal. Issues raised in its court-ordered Pa.R.A.P. 1925(b) statement and incorporated in its subsequent Statement of Questions Presented are, as follows:
Appellant's brief, at 3.
Initially, we address whether the order before us is appealable as a collateral order under Pa.R.A.P. 313. Our Supreme Court has held that orders overruling claims of privilege and requiring disclosure are immediately appealable. See Commonwealth v. Harris , 612 Pa. 576, 32 A.3d 243 (2011) ; see also Custom Designs & Mfg. Co. v. Sherwin-Williams Co. , 39 A.3d. 372 (Pa.Super. 2012). Likewise, the Supreme Court has held that appeals from orders granting discovery in the face of colorable claims of attorney-client privilege are appealable under the collateral order doctrine. Harris, supra ; Custom Designs , supra (citing Law Office of Douglas T. Harris, Esquire v. Philadelphia Waterfront Partners , LP , 957 A.2d 1223, 1228–1229 (Pa.Super. 2008) ). Accordingly, we shall consider the merits of the present appeal.
Republic Services claims the trial court erred when it ordered production of witness statements and attorney notes made during counsel's interviews with the 16 employee witnesses. Republic Services maintains the statements represent privileged communications either because counsel and each employee formed a specific attorney-client relationship at the end of the interview or because the employee statements were acquired with the specific purpose of enabling counsel to advise corporate client/employer Republic Services in the present civil suit. Counsel's notes relating to the interviews similarly receive protection under the work product doctrine, Republic Services argues.
Our courts have outlined the parameters of the attorney-client privilege as follows:
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