Discovery • Attorney-Client & Work Product Privileges • Waiver • Communications

22 Front Street, LLC v. Gorodetzer, PICS Case No. 13-0921 (C.P. Philadelphia March 6, 2013) Glazer, J. (24 pages).

The court granted in part defendant attorneys’ request for a protective order because exceptions to attorney-client work product doctrine did not apply here and defendants’ former clients could not unilaterally waive the communications privilege with respect to a co-client. Affirmance recommended.

On Oct. 17, 2011, plaintiff 22 Front Street LLC filed this lawsuit against condominium unit holders and Fox Rothschild LLP and affiliates (Fox defendants), asserting abuse of process and other claims.

This matter arose from a prior lawsuit by homeowners against plaintiff and the executive board of 22 Front Street Condominium Association and Friends Center City Retirement Community a/k/a Friends Center City Riverfront.

In the prior action, homeowners sought to block the proposed sale of a set of condominium units to Friends. The court denied homeowners’ request for a preliminary injunction.

While homeowners’ appeal was pending, they reached a settlement with Friends and withdrew their appeal. However, homeowners’ claims against plaintiff for damages arising from alleged mismanagement and breach of fiduciary duty continued.

Meanwhile, Friends filed a complaint against homeowner with the Pennsylvania Human Relations Commission alleging age discrimination. PHRC issued a finding of probable cause against homeowners for their interference with the sale of housing based on age.

In August 2011, all but one homeowner, Frank Bardanonaro, Jr., resolved their dispute with the PHRC. On Sept. 17, 2012, plaintiff entered into a global settlement with homeowners, except Bardanonaro, who was represented by separate counsel.

Settling homeowners expressly agreed to waive attorney-client privilege between them and Fox defendants. They also granted plaintiff a license to obtain and review "attorney work product" generated in connection with Fox defendants’ representation of them in that matter.

The current action continued with Fox defendants as the only remaining defendants. They moved for a protective order as to plaintiff’s requests for all communications between homeowners and Fox defendants regarding the prior action and production of Fox defendants’ internal work product and communication regarding its representation of homeowners.

The court found that Fox defendants had standing to assert an objection to production of communications with its former client, Bardonaro. Fox defendants’ communications with former clients relating to legal advice fell within attorney-client privilege, absent a finding of waiver.

Bardonaro did not waive the privilege, either expressly or by assertion of advice of counsel. Therefore, his privileged communications remained protected. Moreover, a co-client cannot waive another co-client’s privilege, the court observed.

Although homeowners may have explicitly waived attorney-client privilege in the settlement agreement, they could not unilaterally waive the privilege for Bardonaro. Communications between Fox defendants and Bardonaro could not be produced. All other documents embodying communications between Fox defendants and homeowners were to be produced.

Moreover, work product sought here was not relevant to whether Fox defendants were liable in this matter for abuse of process. The Rule 4003.3 comment explains that an exception to work product doctrine applies when a defense is based on good faith reliance upon counsel.

Here, homeowners were not parties because they already settled. Thus, the advice of counsel defense was not at issue. The court found that Fox defendants’ work product was not otherwise subject to production. To do so would eviscerate work product protection in every case alleging abuse of process.