Notes an investigator took during witness interviews are not protected from discovery under the work-product doctrine, even if the investigator had been acting at the direction of an attorney, the Pennsylvania Superior Court has ruled.
A unanimous three-judge Superior Court panel ruled June 7 that an investigator working for the Archdiocese of Philadelphia as part of its effort to defend against sexual abuse allegations must turn over notes and summaries of witness interviews. The ruling in McIlmail v. Archdiocese of Philadelphia affirmed an order from the Philadelphia Court of Common Pleas.
The archdiocese contended that, since the investigator had been hired by its defense counsel, the investigator was not simply a “party representative,” but rather was “an agent of the attorney,” who was therefore entitled to the same work-product protections as lawyers. The Superior Court, however, led by Judge Jack Panella, disagreed, saying that adopting the archdiocese’s interpretation would “impermissible expand” the discovery rules.
“The interpretation of the Rule 4003.3, as proposed by the archdiocese in this case, could potentially corrode the clear distinction that the rule makes between the work-product of an attorney with that of a non-attorney representative,” Panella said in the court’s opinion. “The work-product of an attorney must necessarily relate to legal work performed for a client, not to notes memorializing the statements of witnesses taken by an investigator acting a mere agent of the client or of the attorney.”
In an emailed statement Kline & Specter attorneys Thomas Kline, Charles “Chip” Becker and David Inscho, who are representing the plaintiffs, said, “We appreciate the Superior Court’s careful analysis of this important issue, and believe the court reached the right decision under the law.”
Nicholas Centrella of Conrad O’Brien, who is representing the archdiocese, did not return a call seeking comment.
The lawsuit, filed in 2013, alleged that Rev. Robert L. Brennan sexually abused Sean Patrick McIlmail, who died shortly before the suit was filed. The suit faulted Monsignor William Lynn and the archdiocese for not removing Brennan from contact with children, saying the two “protected Brennan in his position so as to facilitate his sexual abuse of children, including” McIlmail.
McIlmail suffered from drug addiction, and was found dead from an overdose in his car Oct. 13 2013, in the Kensington section of Philadelphia. The lawsuit contended that McIlmail suffered psychologically and emotionally as a result of the abuse, and developed “various psychological coping mechanisms” in order to deal with the trauma.
According to Panella, the archdiocese hired the private investigation firm Auld & Associates to conduct interviews with potential witnesses that counsel for the archdiocese had identified. Lawyers for the plaintiff eventually sought discovery of the investigator’s notes and summaries of the witness interviews.
A special master in the case determined that witness statements were discoverable, although he added that neither the interviewer’s impressions, nor any communications between the interviewer and the archdiocese’s counsel were subject to discovery.
After the defense objected to the plaintiff’s discovery request, the trial court granted the plaintiff’s motion to compel production of the witness statements, and the archdiocese appealed.
The appeal to the Superior Court focused on the interplay between Rules 4003.1 and 4003.3 of the Pennsylvania Rule of Civil Procedure. Ultimately, the court determined that the purpose of the rules is to shield the mental processes of an attorney, and that disclosing the documents at issue would not have gone against that purpose.
“These documents relate solely to factual information obtained by the investigator from the potential witnesses, and do not reflect, in any manner whatsoever, the thought process of the attorneys involved,” Panella said.