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Custom Designs & Manufacturing Company, et al v. Sherwin-Williams Company

February 15, 2012


Appeal from the Order entered on March 31, 2011 in the Court of Common Pleas of Lackawanna County, Civil Division at No(s): 04-CV-2060.

The opinion of the court was delivered by: Strassburger, J.:

J. A33036/11



Sherwin-Williams Company (Sherwin-Williams) appeals the trial court order entered on March 31, 2011, in which the trial court granted the motion to compel discovery filed by Custom Designs & Manufacturing Company's (Custom Designs) upon a finding that two memoranda in the possession of Sherwin-Williams are discoverable and not protected by attorney-client privilege. We affirm.

The trial court aptly summarized the relevant factual and procedural history of this case.

At all times relevant hereto, the Plaintiff Custom Designs & Manufacturing Company, Inc. (Custom Designs) was engaged in whole or in part in the business of manufacturing and/or assembling custom cabinets.

* Retired Senior Judge assigned to the Superior Court.

On or about November 4, 2002, the building and corresponding business in which Custom Designs was located was significantly damaged by fire.

On or about May 21, 2004, Custom Designs filed a civil action against the Defendant Sherwin[-]Williams alleging in whole or in part that Sherwin[-]Williams' products self-heated or spontaneously-combusted, thereby causing the subject fire and resulting damages.

The day after the fire, more specifically on November 5, 2002, Mr. Joseph Schreck [(Schreck)], a marketing representative for Sherwin[-]Williams, and another employee, Mr. Robert Myers [(Myers)] visited the site of the fire. The purpose of the visit, in whole or in part, was to offer assistance and help the owners out. During this visit, Schreck and Meyers allegedly talked to a Mr. Bob Lastarza [(Lastarza)], an employee of Custom Designs. Mr. Lastarza allegedly told them that, prior to the fire, he saw the "flickering of lights."

On or about November 21, 2002; Defendant Sherwin[-] Williams was placed on notice of a potential claim.

On or about December 5, 2002, Mr. Schreck prepared and authored two memoranda that were directed to Attorney Ronald M. Tamburrino [(Tamburrino)], counsel for Sherwin[-]Williams. [In a 2004 discovery request, Custom Designs requested copies of statements and or summaries of interviews of any persons having knowledge of the fire. Sherwin-Williams responded to Custom Designs' interrogatory that the only known statements were either (1) already in the possession of Custom Designs or (2) contained within the Pennsylvania State Police Fire Investigation Report. During depositions on June 22, 2010, Schreck and Meyers testified to the existence of two memoranda prepared by Schreck regarding Schreck's observations of the scene the day following the fire and the conversation with Lastarza.] Mr. Schreck does not recall whether he prepared these memoranda on his own or whether he was asked to prepare same. One of the memoranda, in whole or in part, addresses the subject matter of the Lastarza conversation noted above.

[Custom Designs] made a formal request for these memoranda. [Sherwin-Williams] had objected to the production of these documents on the basis of attorney-client privilege and attorney work product protection.*fn1

[Custom Designs] correspondingly filed a Motion to Compel the production of these documents. The matter was presented to the Discovery Master, Attorney Richard Campagna. By Decision dated October 29, 2010, the Discovery Master granted [Custom Designs'] Motion concluding that he finds "nothing objectionable in the documents submitted..."

Trial Court Order, 3/31/2011, at 1-2 (internal citations and paragraph numbering omitted).

Sherwin-Williams appealed from the Discovery Masters' order. Both parties submitted briefs to the trial court. On March 31, 2011, the trial court issued an order denying Sherwin-Williams' appeal and granting Custom Design's request to compel discovery. This appeal followed.

Sherwin-Williams asks us to consider whether "intra-company communications concerning an impending claim to the in-house counsel responsible for providing legal advice with respect to that claim [are] protected by the attorney-client privilege." Sherwin-Williams' Brief at 2.

We must first consider whether this appeal, which is of an interlocutory order, is properly before us. Our Supreme Court has recently held that orders overruling claims of privilege and requiring disclosure are immediately appealable. See Commonwealth v. Harris, 2011 WL 5964550 (Pa. filed November 23, 2011). Likewise, this Court has recently held that appeals from orders granting discovery in the face of colorable claims of attorney-client privilege are appealable under the collateral order doctrine.*fn2 Id.; Law Office of Douglas T. Harris, Esquire v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 1228-1229 (Pa. Super. 2008). Accordingly, we will consider the merits of the present appeal.

Sherwin-Williams claims that the trial court erred in ordering the production of memoranda authored by Schreck and forwarded to in-house counsel Tamburrino. Sherwin-Williams argues that these documents are privileged as they were created to provide Tamburrino with the relevant facts from which he could begin his legal analysis of the Custom Designs suit.

"The question of whether attorney-client privilege protects a particular communication from disclosure is a question of law. As such, we employ a de novo standard of review and our scope of review is plenary." Carbis Walker, LLP v. ...

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