The opinion of the court was delivered by: Senior Judge Friedman
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
The City of Philadelphia (City) appeals from the January 15, 2009, order of the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, (trial court) granting the Motion to Compel Discovery filed by Eastwick Development Joint Venture IX, L.P., and New Eastwick Corporation (together, Eastwick). The trial court ordered the City to produce documents exchanged between the City and the Redevelopment Authority of Philadelphia (RDA) and their respective attorneys related to Eastwick's interest in a tract of land known as "Parcel C," rejecting the City's assertion that the communications were shielded from discovery by the joint defense/common interest privilege. We affirm.
The relevant facts are not in dispute.*fn1 In 1999, RDA was the record owner of property situated in Philadelphia and known as "Parcel C" within the Eastwick Urban Renewal Area Plan of 1958. Pursuant to a longstanding redevelopment agreement (Redevelopment Agreement) between Eastwick and RDA, Eastwick was to acquire Parcel C and undertake commercial redevelopment of the property. However, when the City expressed an interest in developing Parcel C for expansion of airport employee parking, RDA agreed to cooperate with the City's efforts to acquire the property; RDA also agreed to allow the City's appraisal to determine the property's value. Because of Eastwick's interest in Parcel C, the City discussed its desire to purchase Parcel C from RDA with Eastwick but could not reach an agreement.
In 2001, the City administration proposed a bill to City Council seeking authorization to acquire Parcel C by agreement or condemnation. No vote was taken on the bill, and City Council requested additional information concerning Eastwick's rights to the property under its Redevelopment Agreement with RDA. RDA eventually filed a declaratory judgment action against Eastwick, unsuccessfully seeking to have the Redevelopment Agreement declared void. In 2003, City Council authorized the City to pursue the acquisition of Parcel C.
In November 2003, the City filed a Declaration of Taking condemning Parcel C. Eastwick filed a motion to intervene as a condemnee, which ultimately was granted pursuant to a court-approved stipulation between Eastwick and RDA. On April 6, 2006, the City deposited estimated just compensation with the trial court in the amount of $7,714,000. The trial court granted Eastwick's motion to distribute the escrow funds and, on January 16, 2007, ordered $6,970,181.00 plus interest be paid to Eastwick and $743,819.00 plus interest be disbursed to RDA.
In November 2007, Eastwick filed a motion for the appointment of a Board of Viewers. On December 28, 2007, the trial court granted the motion, appointed a Board of Viewers to determine the just compensation due to Eastwick and RDA and directed the parties to complete discovery in 120 days. Subsequently, the trial court granted Eastwick's motion in limine to preclude RDA's participation before the Board of Viewers.
The present discovery dispute began in January 2008, when Eastwick sent discovery requests to the City. At the City's request, Eastwick agreed to extend the discovery deadline to March 3, 2008. The City did not respond by that date; instead, on March 5, 2008, the City filed a motion for a protective order, arguing that the discovery requests sought irrelevant information, were unduly burdensome and included materials protected by the deliberative process privilege. The City subsequently sent written responses to the discovery requests, repeating the assertions set forth in the motion for a protective order. On April 8, 2008, the trial court denied the City's motion for a protective order and directed the City to respond to Eastwick's discovery requests within twenty days of April 15, 2008, the date on which the April 8th order was docketed. After the City failed to respond within that time, Eastwick filed a motion for sanctions, which the trial court granted on June 19, 2008. Ultimately, the discovery deadline was extended to September 23, 2008.
After securing new counsel in August 2008, the City produced thousands of pages of documents; the City also provided a privilege log listing documents the City would not produce based on its assertions that these documents were protected by an attorney-client, work product and/or joint defense privilege.*fn2 (R.R. at 42a-68a.) On October 31, 2008, Eastwick filed a motion to compel production of the communications between the City and RDA for which the City claimed the joint defense privilege. (R.R. at 32a-36a.) In its motion to compel, Eastwick argued that the joint defense privilege was not applicable because the City and RDA are not joint defendants but, rather, are adverse parties in the condemnation proceeding. Eastwick also asserted that, in order for the joint defense privilege to apply, the parties must have an identical legal interest as well as an express written agreement to pursue a joint defense. Eastwick maintained that, because the City and RDA were adverse parties in the condemnation proceeding, their interests were not common, let alone identical.
In its answer to the motion to compel, the City argued that it was entitled to assert the joint defense privilege because the City and RDA shared a common interest in determining the nature of Eastwick's rights under the Redevelopment Agreement and in promoting the City's acquisition of the property. (R.R. at 92a-96a.) By order filed January 15, 2009, the trial court granted Eastwick's motion to compel, indicating in its subsequent opinion that it had adopted the reasoning set forth by Eastwick in its memorandum of law. The City now appeals to this court.*fn3
As directed by this court's March 13, 2009, order, the City first addresses the issue of whether the January 15, 2009, order is appealable as a collateral order under Pa. R.A.P. 313. Unless otherwise permitted by statute or rule, an appeal may be taken only from a final order. Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999). A final order ordinarily is one that ends the litigation or disposes of the entire case. Id. However, Pa. R.A.P. 313 provides that an appeal may be taken as of right from a collateral order; the rule defines a collateral order as an order that is separable from and collateral to the main cause of action, involving both a right that is too important to be denied review and a claim that will be irreparably lost if review is postponed until final judgment in the case.
Relying on Ben, the City argues that the trial court's January 15, 2009, order satisfies these criteria, and we agree. Because we can address the issue of privilege, which involves questions concerning the preparation and purpose of the documents at issue, without considering the merits of the underlying action, which relate to the value of Parcel C, we first conclude that the order is separable from the main cause of action. In determining whether the right asserted is important, we are mindful that the issue must involve rights deeply rooted in public policy going beyond the particular litigation at hand. Ben. As explained more fully below, the joint defense privilege asserted here is an extension of the attorney-client privilege, a right that is firmly rooted in public policy and essential to parties in every action and, therefore, too important to be denied review. Finally, there is no question that if review of this issue is ...