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Kevin P. Allen of Eckert Seamans Cherin & Mellott

Two recent decisions from the Pennsylvania Superior Court appear inconsistent and irreconcilable with respect to a trial court’s in camera review of documents subject to a claim of privilege. In one case, the Superior Court rebuked the trial court for not conducting an in camera review and suggested that in camera review by trial courts of allegedly privilege documents is required in Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015). In the second case, the Superior Court held incongruously that a trial court’s decision to conduct an in camera review would infringe on the attorney-client privilege and therefore concluded that an order requiring an in camera review justifies an immediate interlocutory appeal as of right, as in Farrell v. Regola, 150 A.3d 87 (Pa. Super. 2016). Consequently, trial courts and litigants are now situated squarely between the Yocabet rock and the Farrell hard place.

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