EVIDENCE-ATTORNEY-CLIENT PRIVILEGE-WAIVER

Brandywine v. Brandywine Vill. Assocs., 2023 Pa. Super. LEXIS 336 (July 28, 2023) (Stevens, P.J.E.) Waiver based on placing attorney-client communications in issue is not limited to situations where the party specifically pleads reliance on advice of counsel or actually relies on privileged or protected documents and can also be found based on a party’s affirmative assertion of its state of mind as a defense or issue in the case where that state of mind could be based on attorney advice or communications. See Birth Center v. St. Paul Companies, Inc., 1999 PA Super 49, 727 A.2d 1144, 1166 (Pa.Super. 1999), aff’d, 567 Pa. 386, 787 A.2d 376 (Pa. 2001), disapproved of on other issue by Mishoe v. Erie Insurance Co., 573 Pa. 267, 824 A.2d 1153 (Pa. 2003) (attorney work product doctrine waived as to documents concerning reasons for party’s act where party placed its state of mind and reasons for that act in issue in its arguments at trial); Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 537 (3rd Cir. 1996) (claim by party represented by counsel in negotiation of agreement that she did not understand agreement’s legal implications waived attorney-client privilege as to communications concerning agreement); Doe v. Schuylkill County Courthouse, 343 F.R.D. 289, 2023 U.S. Dist. LEXIS 13889 (M.D.Pa. Magistrate Judge January 17, 2023) (where good faith defense is asserted that could be based on advice of counsel, attorney-client privilege is waived absent an affirmative commitment by the defendants that their good faith defense will not be based on any reliance on counsel). The attorney work product doctrine protects from discovery “the mental impressions of a party’s attorney” and the attorney’s “conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” Pa.R.C.P. No. 4003.3; BouSamra v. Excela Health, 653 Pa. 365, 210 A.3d 967, 976 (Pa. 2019); Carlino East Brandywine, L.P., 260 A.3d at 205-206; Brown v. Greyhound Lines, Inc., 2016 PA Super 108, 142 A.3d 1, 9-10 (Pa.Super. 2016); Saint Luke’s Hospital of Bethlehem v. Vivian, 2014 PA Super 171, 99 A.3d 534, 550-51 (Pa.Super. 2014). This protection is not limited to materials prepared for or in anticipation of litigation. BouSamra, 210 A.3d at 976 & n.6; Carlino East Brandywine, L.P., 260 A.3d at 205; Estate of Paterno v. National Collegiate Athletic Association (NCAA), 2017 PA Super 247, 168 A.3d 187, 201 (Pa.Super. 2017). “Work product protection ‘provid[es] a privileged area within which [an attorney] can analyze and prepare [a] client’s case … by enabling attorneys to prepare cases without fear that their work product will be used against their clients.'” BouSamra, 210 A.3d at 976-77 (brackets and ellipsis in original) (quoting Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 2011 PA Super 251, 32 A.3d 800, 812 (Pa.Super. 2011) (en banc), aff’d by an equally divided court, 625 Pa. 301, 91 A.3d 680 (Pa. 2014)). Under Pa.R.C.P. 4003.3, attorney work product is discoverable only where the attorney’s mental impressions, opinions, or legal research or theories are relevant to the action, and is not discoverable merely because the subject matter of the documents is relevant. Carlino East Brandywine, L.P., 260 A.3d at 206-07; Barrick, 32 A.3d at 812. Attorney work product protection is waived by assertion of a claim or defense that places the attorney’s state of mind in issue. Saint Luke’s Hospital of Bethlehem, 99 A.3d at 551-52; Birth Center, 727 A.2d at 1166. Our review of the records leads us to find that Attorney Prince placed his state of mind in issue. In his answer and new matter to Carlino’s second amended complaint, Attorney Prince pled that his actions were good faith advocacy and were based on application of his legal judgment to the facts. We find that the trial court did not err in finding that Attorney Prince waived attorney work product protection. However, we agree with Appellants that Attorney Prince did not waive attorney work product protection for other attorneys involved in this litigation. Unlike the attorney-client privilege, the right to assert attorney work product protection belongs to the attorney, not the client. BouSamra, 210 A.3d at 975; Carlino East Brandywine, L.P., 260 A.3d at 205, 207. In its prior opinion in this case, this Court held that because the work product protection belongs to the attorney whose conclusions, opinions, memoranda, notes or summaries, legal research or legal theories are sought in discovery, the client’s reliance on advice of counsel does not waive attorney work product protection. Carlino East Brandywine, L.P., 260 A.3d at 207. This Court further concluded in that opinion that “the inquiry as to whether work product protection has been waived must look to counsel’s actions and the manner in which counsel shared his work product.” Id. Accordingly, we reverse the trial court’s order directing Appellants to produce privilege log documents. It is unnecessary to decide whether documents authored by Attorney Prince or his firm subsequent to the actions that he alleges were good faith advocacy are outside the scope of his waiver of work product protection because Appellants also withheld those documents on attorney-client privilege grounds. As discussed above, those subsequent documents are outside the scope of the waiver of attorney-client privilege and are therefore protected from discovery regardless of whether the work product protection has been waived. For the foregoing reasons, we affirm the trial court’s order in part with respect to its finding that Appellants have waived the attorney-client privilege and work product protection as a result of their defenses to Carlino’s second amended complaint. However, we reverse the trial court’s order in part as to documents which are outside the scope of Appellants’ waiver of the attorney-client privilege and work product protection.