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PA Court Heard Interlocutory Appeal on Public Policy of Attorney/Client Privilege
June 13, 2018
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Pennsylvania Courts generally do not hear interlocutory appeals. Rather, a litigant must wait for the case to conclude to file all appeals. However, the court found an exception in <em><a href="http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010356275737926595.pdf?cb=1">Knopick v. Boyle & Boyle Litigation</a>.</em>
There, plaintiff sued an attorney and his firm for commingling client funds with firm accounts to pay firm expenses. During discovery, Knopick noticed the deposition of a former employee of Boyle Litigation, and subpoenaed certain items from him. Included in this list were emails between the former employee and Boyle Litigation that would provide evidence supportive of Knopick’s claim. Boyle’s attorney represented the former employee at the deposition, and argued the emails sought were protected from disclosure by Pennsylvania’s attorney-client privilege and refused to produce them.
Knopick filed and succeeded on a motion to compel Boyle to produce the emails , and Boyle appealed t. Knopick sought to quash the appeal, arguing the order was interlocutory and, thus, unreviewable. Ordinarily, the Superior Court will not provide “interim supervision” of discovery practice at the trial court level. However, the court found the collateral order exception to the general rule to be applicable. Rule 313(b) defines collateral order as one that is separable from the main cause of action and involves a party’s right that is too important to deny review. The discovery order was separable from Knopick’s underlying claims. Additionally, because the issue of attorney-client privilege was one that implicated public policy, the right at stake was too great to deny review. As such, the appeal proceeded. However, it was all for naught since because the court determined that the emails at the center of the dispute were not privileged after all.
This case serves as a reminder that though interlocutory appeals are usually impermissible in Pennsylvania, on occasion, where it is separable or a matter of public policy, the Superior Court may hear the appeal.
Thanks to Robert Turchick for his contribution to this post.