Work-product protection under Pennsylvania’s Rules of Civil Procedure is very narrow for nonattorneys, and that is true even if the work product in question is created by a nonattorney hired by and working at the express direction of counsel, see McIlmail v. Archdiocese of Philadelphia, 189 A.3d 1100 (Pa. Super. 2018).
Pa. R. Civ. P. 4003.3 governs work-product issues in civil cases in Pennsylvania state courts. In contrast to the federal work-product rule, work product is generally discoverable in Pennsylvania, unless it falls within one of the exceptions specifically enumerated in Rule 4003.3. Rule 4003.3 treats attorney work product differently than nonattorney work product. For attorney work product, the exceptions to discoverability are broad, and thus the rule provides fairly broad protection for attorney work product.
The same is not true for nonattorney work product. The exceptions to the general rule of discoverability for nonattorney work product are narrow, and thus Rule 4003.3 provides nonattorney work product with only limited protection from discovery. Only a nonattorney’s “mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics” are protected from discovery, see Pa. R. Civ. P. 4003.3; see also American Coal & Minerals v. Henderson Bros., 157 P.L.J. 447, 448-49 (2009).
It has long been clear that the work product of a nonlawyer representative of a client, like a human resources coordinator or a safety investigator, is broadly discoverable in Pennsylvania, even if specifically prepared in anticipation of, or even during, litigation.
It has been less clear how Rule 4003.3 would apply to a nonattorney working for or hired by counsel. Compare, e.g., Brant v. Turnamian, 9 Pa.D.&C.4th 216, 219 (C.P. York 1991) and Briem v. Coppola, 37 Pa.D.&C.3d 350 (C.P. Allegheny 1984). The Brant court held that attorney work-product protection applies to a nonattorney paralegal’s work product. By contrast, the Briem court held that witness interview memoranda prepared by an investigator were discoverable as nonattorney work product even though the investigator was hired by and working for counsel.
The Pennsylvania Superior Court recently brought some more clarity to the issue with its McIlmail decision. In McIlmail, the plaintiff’s decedent allegedly had been abused by a priest, and the diocese defendant allegedly had concealed the abuse. The diocese hired counsel, and counsel in turn hired a private investigation firm to interview witnesses. The investigator, who was not an attorney, took notes and created memoranda memorializing the witness interviews.
The plaintiff sought those notes and memoranda in discovery. The diocese objected, arguing that, because the diocesan lawyers hired the private investigator, the notes and memoranda were entitled to the broader protection afforded to attorney work product.
The Superior Court disagreed and held that the documents were discoverable because the investigator was a nonlawyer representative of the diocese for purposes of Rule 4003.3 and that, therefore, the investigator’s notes and memoranda were not entitled to the broader protection afforded to attorney work product. McIlmail settles the issue conclusively regarding outside investigators or other nonlawyers, even if hired by counsel; their work product will be entitled to only limited nonattorney work product protection.
But, what about the work product of a paralegal, clerk, law student or secretary who is employed directly at a law firm serving as counsel to a party? For instance, if a lawyer delegates to her paralegal or clerk the task of interviewing a witness, and that paralegal/clerk prepares a memorandum to the file or to the attorney regarding the interview, the clear implication of McIlmail, with its emphasis on the need to construe work-product protection narrowly and in strict accordance with the precise provisions of Rule 4003.3, is that the paralegal/clerk’s memorandum would not qualify for the broader protection of attorney work product and instead would only be entitled to the much more limited protection available for nonattorney work product.
Thus, Pennsylvania attorneys should be aware that, unless an attorney himself is the author of a memorandum, outline, summary, or similar document, that document likely will be eligible only for very limited work product protection, even if prepared specifically for litigation purposes and even if written by a paralegal or clerk employed by and working at the direction of counsel.
Kevin P. Allen is a member of Eckert Seamans Cherin & Mellott’s commercial litigation practice group. He is the author of “The Attorney-Client Privilege and Work-Product Doctrine in Pennsylvania,” now in its fifth edition from PBI Press.