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Mcilmail v. Archdiocese of Philadelphia

Superior Court of Pennsylvania

June 7, 2018


          Appeal from the Order Entered February 22, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): November Term, 2013, No. 01114

          BEFORE: PANELLA, J., OLSON, J., and STEVENS, [*] P.J.E.


          PANELLA, J.

         In this case we are asked to resolve two issues: (1) are notes and memoranda of witness interviews by a private investigator, acting at the express direction of defense counsel, protected by the work-product doctrine, as defined in Pennsylvania Rule of Civil Procedure No. 4003.3, to the same extent as if the interviews were conducted by counsel, and (2) whether the defense should be estopped from relying upon the work-product doctrine because it pursued disclosure of the identical materials from the claimant's attorneys.

         As indicated above, the discovery under review involves notes from witness interviews conducted by a private investigator hired by defense counsel. The trial court ruled that the witness interviews were discoverable under Rule 4003.3, but that the work-product doctrine applied in a limited fashion. Because the interviews were not conducted by an attorney, only the "impressions or evaluations" of the investigator were barred from production, unlike the broader protection the doctrine grants to attorneys under Rule 4003.3. Additionally, the trial court, in a strongly worded opinion, held that the defense was estopped from challenging the disclosure of the materials in issue in light of its conduct during the discovery phase of the litigation.


         Factual History

         The plaintiff, Deborah McIlmail, Administratrix of the Estate of Sean Patrick McIlmail, filed this action in November 2013 against the Archdiocese of Philadelphia, Monsignor William Lynn and Father Robert Brennan. Deborah McIlmail is the mother of the decedent, and alleged that Father Brennan engaged in a course of sexual abuse of the decedent, while Sean was a minor, starting in 1998.

         In relation to the causes of action against Monsignor Lynn and the Archdiocese, the plaintiff alleges that they engaged in a course of concealment after learning of Brennan's abusive conduct. The result of their actions was that Brennan continued to have unsupervised access to Sean during which time additional episodes of sexual abuse were perpetrated. The plaintiff also contends that Brennan was an employee and agent of the Archdiocese.

         Witness Statements and Subpoena

         During the discovery stage of the case, the trial court appointed former Justice Russell Nigro to meet with counsel and resolve certain discovery disputes. An issue concerning interviews of witnesses had been raised by the parties and was addressed at a discovery conference held on September 9, 2016.

         Counsel for the Archdiocese had retained Auld & Associates, a private investigator firm, to conduct interviews with potential witnesses identified by the Archdiocese's attorneys. Counsel for the plaintiff sought discovery of the investigator's notes and summaries of the witness interviews.

         At an earlier stage of discovery, Plaintiff sent a Notice of Intent to Subpoena the files of the defense investigator, Auld and Associates. The proposed subpoena sought documents in Auld's files including:

1. Interview notes;
2. Written reports, whether received or prepared by Auld;
3. Written witness statements, including drafts;
4. Photographs or video recordings of the witnesses;
5. Intra-office memoranda and analyses;
6. Lists of individuals contacted and/or interviewed; and
7. Any correspondence from Auld regarding the McIlmail case.

         Justice Nigro reviewed Rule 4003.3, and determined that witness statements obtained by either side of the litigation were discoverable, but that any impressions about the statements by the interviewer or communications between the interviewer and counsel were not discoverable. The term "statement" was limited to statements of fact elicited from the witnesses by the interviewer, not any impressions of the witnesses. Justice Nigro based his decision on the concluding sentences of Rule 4003.3:

The discovery shall not include disclosure of the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party's attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.

(emphasis added).

         In the event that Justice Nigro's decision was not acceptable, the parties were given an opportunity to object and seek review from the trial court. No objection was raised by either side. The parties then exchanged similar discovery requests on this basis. First, defense counsel served on plaintiff discovery requests seeking information obtained from witnesses interviewed by the plaintiff's counsel and their investigators. A few days later, plaintiff sent an identical set of ...

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