from the Order Entered December 29, 2016 In the Court of
Common Pleas of Cumberland County Civil Division at No(s):
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
Boyle and Boyle Litigation (collectively
"Appellant"), appeal from an interlocutory
discovery order, entered in the Cumberland County Court of
Common Pleas Civil Division, which granted Appellee's
motion to compel disclosure of certain electronic documents,
over Appellant's objection that the documents are
protected by the attorney-client privilege. For the reasons
that follow, we affirm.
relevant facts and procedural history of this appeal are as
follows. Appellee sued Appellant in 2014 for legal
malpractice sounding in breach of contract, negligence,
fraud, and conversion, based on allegations that Appellant
comingled trust account funds with operating funds to pay
firm expenses. During discovery in the present malpractice
case, Appellee sent notice to a non-party, Donald Sherman,
for a videotape deposition, along with a subpoena for certain
documents from his personal email account.
[Mr.] Sherman is a former non-attorney employee of
[Appellant]. One of his duties was to reconcile the attorney
trust account. Sometime in November of 2012, Mr. Sherman
became concerned about possible issues with the account. As a
result, he created a list of those concerns and emailed them
to himself. He used his personal email account to both send
and receive the list. He eventually met with an attorney, who
was not of Boyle Litigation. He also met with a second
lawyer, who was employed by Boyle Litigation, on a later
During the deposition of Mr. Sherman, [Appellee] sought the
November 2012 email memorializing the concerns regarding the
trust account. [Appellant's] Attorney represented Mr.
Sherman at the deposition. He took the position that the
email was subject to attorney-client privilege. Thereafter,
[Appellee] filed a Motion to Compel. After hearing argument,
[the trial court was] satisfied that the email was not
subject to attorney-client privilege. Consequently, [the
trial court] ordered [Appellant] [on December 29, 2016, ] to
[Appellant]'s concise statement of [errors] complained of
on appeal alleges that [the trial court] erred in 1) holding
that the email in question is not subject to the
attorney-client privilege; 2) failing to perform an in-camera
inspection of the email; and 3) ordering the production of a
document that is the property of a non-party.
(Trial Court Opinion, filed March 22, 2017, at 1-2) (internal
Appellant raises the following issues for our review:
DID THE TRIAL COURT ERR AND INCORRECTLY INTERPRET/APPLY THE
ATTORNEY-CLIENT PRIVILEGE BY ORDERING THE PRODUCTION OF NOTES
THAT WERE PREPARED BY A CLIENT IN ANTICIPATION OF A MEETING
WITH HIS ATTORNEY, CONTAINING THE ISSUES THE CLIENT WISHED TO
DISCUSS WITH HIS ATTORNEY, SO THE CLIENT COULD RECOLLECT AND
CONVEY THOSE ISSUES TO HIS ATTORNEY DURING THE
DID THE TRIAL COURT ERR BY HOLDING THAT THE NOTES IN QUESTION
WERE NOT SUBJECT TO THE ATTORNEY-CLIENT PRIVILEGE WITHOUT
FIRST ORDERING OR PERFORMING ANY INSPECTION OF THE NOTES,
DESPITE A PARTY'S REQUEST FOR IN CAMERA
INSPECTION OF THE NOTES?
DID THE TRIAL COURT ERR BY ORDERING THE PRODUCTION OF THE
NOTES IN QUESTION DESPITE THE FACT THAT (A) [APPELLEE'S]
MOTION TO COMPEL WAS DIRECTED TO AND SOUGHT RELIEF FROM ONLY
[APPELLANTS], RATHER THAN NON-PARTY DONALD SHERMAN, AND (B)
THE NOTES IN QUESTION WERE THE PROPERTY OF ONLY NON-PARTY
(Appellant's Brief at 4).
prefatory matter, Appellee has filed a motion to quash this
appeal as interlocutory and unappealable. Specifically,
Appellee contends (a)
failed to make a colorable claim of attorney-client
privilege, (b) Appellant does not own the privilege asserted,
and (c) the subject ruling does not qualify for review under
the collateral order doctrine. For these reasons, Appellee
concludes this Court should quash the appeal. We disagree.
regard, "[T]he appealability of an order directly
implicates the jurisdiction of the court asked to review the
order." In re Estate of Considine v. Wachovia
Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009).
"Accordingly, this Court has the power to inquire at any
time, sua sponte, whether an order is
appealable." Id.; Stanton v. ...