HARRISBURG — A Pennsylvania appeals court has determined that communication used in a personal injury lawsuit should have been barred due to attorney-client privilege.
The underlying dispute involves Karen Newsuan, who alleged Republic Services’ negligence caused her a serious worksite injury in August 2015. She was sorting at a recycling facility when a front-end loader crushed her leg, which had to be amputated above the knee, the complaint states.
During discovery, a Philadelphia County Civil Court judge determined neither attorney-client communications nor attorney work-product privileges applied to interviews with lawyers for the company and 16 workers Newsuan identified as potential witnesses to her injury.
Republic filed an interlocutory appeal on the adverse discovery-phase ruling mandating release of witness statements and attorney notes. Superior Court President Judge Emeritus Correale Stevens wrote the June 20 opinion, and Judge Alice Dubow and Judge Judith Olson concurred.
According to the panel, the trial judge said Republic’s lawyer, in contacting the employees to offer legal services, without explaining a potential dual representation conflict, employed an “unfair discovery tactic designed to prevent Newsuan from freely obtaining statements from fact witnesses.”
“We find Republic Services possesses a privilege over the communications supplied at the behest of corporate counsel to assist him in advising Republic Services in the present litigation,” the opinion states. “In eschewing a literal statutory interpretation that would narrow the scope of the privilege to include only client-to-attorney communications, our Supreme Court declared that advancement of the principles underlying the privilege required a broader interpretation protecting attorney-to-client communications as well.”
The panel said the transcript of a March 20, 2018, hearing showed Republic’s lawyer got statements from the 16 workers “with the singular purpose of providing legal advice to Republic” and that no worker sought legal representation or advice.
As such, the panel vacated the order forcing Republic to disclose the communications. However, it clarified that the invoked privilege protects only disclosure, not the underlying facts. The panel said Newsuan is entitled to seek her own interviews with the potential witnesses.