Attorney-Client Privilege

Newsuan vs. Republic Servs., 2019 Pa. Super. LEXIS 613.  Opinion by Stevens, P.J.E.  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. Upjohn Co vs. U.S., 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).  Accordingly, we conclude the particular communications shared between Republic Services’ employees and corporate counsel fall within Republic Services’ scope of attorney-client privilege.  We, therefore, vacate the trial court’s order requiring Republic Services to disclose each such communication.   Given the learned trial court’s appropriate concerns, however, that corporate counsel’s handing of the 16 employees had – whether or not by design – the effect of blocking Newsuan’s access to factual statements pertinent to the accident, we reiterate the clarification in Upjohn that the privilege “only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.”  Id at 395; see also Gillard, 15 A.3d at 52 n. 8 (acknowledging that the privilege does not protect clients from factual investigations).  Therefore it is beyond reasonable dispute that Newsuan may see ex parte interviews with the 16 potential fact witnesses – to the extent they are not represented by counsel – regarding their factual observations relevant to the incident in question in the same manner as corporate counsel has, and she may therefore seek further discovery of available facts through depositions and interrogatories, as provided in the Pennsylvania Rules of Civil Procedure.   The scope of such acts would include, for example, a description of the conditions and operations of the recycling center – with specific reference to the “tipping floor” area – as the witness remembers them to exist proximate to the time of the incident, and what, if anything, the employee may have observed regarding the incident, the employee may have observed regarding the incident, as these matters are strictly factual, would have been open and apparent to non-defendant employees at the scene – including Newsuan, herself – and, therefore, do not involve confidential information of any kind.  Next, we address Republic Services’ challenge to the trial court’s order directing the production of corporate counsel’s notes and other work product related to his interviews with the 16 employee fact witnesses.  The trial court predicated the order directing production of counsel’s interview notes on the conclusion that the interviews preceded a time when a relevant attorney-client privilege had attached.   We have determined, however, that the particular communications were, and remain, privileged.  With its predicate thus undermined, the court’s attorney work-product order cannot stand.