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.
In Yocabet, a medical malpractice action, the issue was whether a presentation made by a nonlawyer executive at a board meeting was privileged when the corporate client’s counsel was also present. The trial court, without conducting an in camera review of the documents at issue, held that the privilege was not available. The corporate client appealed.
The Superior Court reversed, holding that the trial court erred in reaching its decision without having first conducted an in camera review. The Superior Court’s holding in Yocabet does not appear to be limited to the facts of that particular case. Instead, Yocabet suggests that, once the party invoking the attorney-client privilege has satisfied the prima facie elements of the privilege, then a trial court may “not require disclosure without examining the requested documents in camera … .” The Superior Court remanded with a mandate that the trial court conduct an in camera review.
Just months later, in Farrell, a decision authored by the same member of the court who authored Yocabet, the Superior Court put in camera review of documents in a decidedly different light. In Farrell, the privilege issue centered on notes that one of the defendants took during depositions in the case. After the plaintiff sought production of the notes and the defendant invoked the attorney-client privilege, the trial court ordered the defendant to surrender the documents to the court for an in camera review. Before surrendering the notes, the defendant took an immediate appeal from the trial court order. The plaintiff argued to the Superior Court that the appeal was premature because no decision had been made by the trial court on the merits of the claim of privilege.
The Superior Court held in Farrell that the appeal was not premature. Instead, although in Yocabet the court had seemingly held that in camera review was essentially mandatory, in Farrell, the Superior Court held that if “materials are privileged, no one, not even a trial judge, may have access to them.” Consequently, given the gravity of the trial court’s order to surrender materials for in camera review, the Superior Court held that an immediate appeal as of right from that order was available.
The implications of Yocabet and Farrell could be significant, but are likely not fully intended. Farrell suggests that disclosure of privileged documents to a trial court for an in camera review is an infringement of the attorney-client privilege. Therefore, logically, if a party does not appeal a trial court’s order to submit documents for in camera review, the disclosure of those documents to the trial judge could be deemed to be a waiver of the privilege, which would then arguably render moot the trial judge’s substantive in camera privilege review of the documents. If submission to the trial judge were not a waiver, an immediate interlocutory appeal as of right would not be necessary, see Com. v. Harris, 32 A.3d 243, 249 (Pa. 2011) (“once material has been disclosed, any privilege is effectively destroyed”).
Farrell, which suggests disclosure to a trial judge is immediately appealable as a possible infringement of the privilege, seemingly cannot be squared with Yocabet where, by contrast, the Superior Court chastised the trial court for having failed to conduct an in camera review. Under Farrell’s reasoning, upon a remand of Yocabet, once the trial court required the defendant to submit the documents at issue for in camera review, the defendant would have had the ability to file an immediate appeal, and, in fact, may have been required to do so to avoid the risk of waiver arising from disclosure of the potentially privileged documents to the trial judge. On such a subsequent appeal, the documents at issue still would not be part of the record on appeal and there would be no decision on the merits of the privilege claim. If the Superior Court then ordered the surrender of the documents for in camera review by the appellate court, Farrell would seemingly permit or even require the defendant to seek an immediate appeal to the Supreme Court.
It is difficult to believe that the Superior Court intended Yocabet to require trial courts to always and invariably conduct in camera reviews whenever there is a dispute over the attorney-client privilege. It is likewise difficult to believe that the Farrell court’s intent was to force litigants to file interlocutory appeals whenever a trial court seeks to conduct an in camera review, or risk a waiver for failing to do so. However, Yocabet arguably forces trial courts to conduct in camera reviews more frequently, if not invariably, and Farrell seems to compel parties to appeal those trial court directives or risk waiving the privilege entirely.
Clarification from the Superior Court on the issue of in camera review of privileged documents is warranted and needed.
Kevin P. Allen, a partner in the litigation division of Eckert Seamans Cherin & Mellott, is the author of “The Attorney-Client Privilege and Work-Product Doctrine in Pennsylvania,” now in its fifth edition from PBI Press.