concerns, were made for the purpose of seeking legal advice — and
applied that rule to the facts of that case, creating the holding of the
case which binds the court. The court of appeals' reflections contained
in footnote nine on the general applicability of the privilege to all
communications from the attorney to the client, whether or not disclosure
would reveal confidential communications from the client to the lawyer,
however, does not contribute to that holding and may be considered
Yet, because the guidance of a higher court comes in the form of
dicta, it does not mean that lower courts should reject its teaching or
ignore it lightly. Dictum from higher courts is entitled to deference by
inferior courts and should not be disregarded except for good cause. The
court believes that this is such a case. To follow the Third Circuit's
dictum in footnote nine would place the court on a collision course with
a well developed and consistently applied Pennsylvania rule on
attorney-client privilege. Under these circumstances, and with the
greatest respect, the court declines to take Pennsylvania law on
attorney-client privilege to where neither the Pennsylvania legislature
nor the Pennsylvania Supreme Court authorizes this court to go.*fn5
Under these circumstances, the court concludes that production in camera
is required in order to ascertain whether the communications from the
attorney to the client are protected by the privilege.
The insured also contends that where a party files an appeal under the
collateral order doctrine, as Coregis has done here, the court has the
authority to find that the appeal is frivolous and to proceed to trial
while the appeal is pending. See Death Row Prisoners of Pennsylvania v.
Ridge, 948 F. Supp. 1282, 1285-86 (E.D.Pa. 1996) (hereinafter "Death
Penalty Cases"). Generally, filing a timely notice of appeal divests the
district court of any further authority over those aspects of the case on
appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58,
103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). However, in the event that the
appeal is taken from a non-final order, then there is an exception to this
principle of transferring jurisdiction. See Death Penalty Cases, 948 F.
Supp. at 1285. Under this exception, if the district court rules on a
matter that is a "collateral order" and if the claim underlying the
collateral order is frivolous, then the attempted appeal will not divest
the district court of its jurisdiction. See id. The Third Circuit in
United States v. Leppo, 634 F.2d 101, 105 (3d Cir. 1980), held "that an
appeal from a denial of a double jeopardy motion does not divest the
district court of jurisdiction to proceed with trial, if the district
court has found the motion to be frivolous and supported its conclusions
by written findings."
In this case, Coregis appeals the court's decision requiring production
to an adverse party and in camera inspection of documents it claims are
protected by the attorney-client privilege and the work product doctrine.
As the Third Circuit
has noted, in the attorney-client or work product context, "once
putatively protected material is disclosed, the very `right sought to be
protected' has been destroyed." In re Ford Motor Co.,
110 F.3d 954, 963 (3d Cir. 1997) (citing Bogosian v. Gulf Oil Corp.,
738 F.2d 587, 591 (3d Cir. 1984)). Declaring an appeal frivolous
and compelling the disclosure of the documents in spite of Coregis'
appeal, would, as In re Ford Motor Co. suggests, "allow the very
disclosure against which those rules protect." Id.
Moreover, the appeal is not frivolous on its face. "A matter is not
frivolous if any of the legal points are arguable on their merits."
Dreibelbis v. Marks, 675 F.2d 579, 580 (3d Cir. 1982). As aforesaid,
based on a footnote in In re Ford Motor Co., 110 F.3d at 965 n. 9, and
under Coregis' interpretation, the court's prior decision concerning the
attorney-client privilege was legally incorrect. Under these conditions,
the court will not find the appeal frivolous or proceed to trial while
the appeal is pending.
Based on the above stated reasons, the court finds that under the
Pennsylvania rule governing the attorney-client privilege, communications
from a client to an attorney are protected, and that the corollary to
that rule protects communications from an attorney to a client to the
extent that the communication would reveal client confidences.
Therefore, an in camera review of the documents authored by outside
counsel and delivered to Coregis is required in order to determine
whether the privilege protects the documents from disclosure. Finally,
the appeal is not frivolous and will not be dismissed. Trial is stayed
until further order.
An appropriate order follows.