Law Office of Douglas T. Harris v. Philadelphia Waterfront Partners, LP

DISSENTING OPINION BY

BOWES, J.:

¶ 1 As this Court issued an order granting Appellants’ emergency application for a supersedeas of the discovery orders on November 16, 2007,8 and Appellees simultaneously informed this panel that they advised Appellants to catalog the privileged materials and forward them to the trial court for in camera review, the issue presented herein has become moot, and the appeal should be dismissed. Thus, I respectfully dissent.

¶ 2 It is well-settled that an actual controversy must exist at every stage of the judicial process; otherwise, the matter will be dismissed as moot. Fitzpatrick v. Fitzpatrick, 811 A.2d 1043, 1045 (Pa.Super.2002). Pennsylvania courts do not issue purely advisory opinions or address hypothetical questions. Erie Insurance Exchange v. Claypoole, 449 Pa.Super. 142, 673 A.2d 348, 352 (1996). In keeping with these principles, we should not enter a judgment or decree that cannot be given effect unless: (1) the question presentéd is *1235capable of repetition and apt to elude appellate review; (2) a party will continue to be prejudiced by the trial court’s decision; or (3) the issue is of great public importance. Id. at 353.

¶ 3 In the case at bar, both parties have informed this panel that the underlying issue was resolved after the notice of appeal was filed. See Appellees’ motion to quash, 11/13/07, at 3; Appellants’ reply brief at 8. However, the majority rejects these assertions because Appellants did not “include any evidence that [they complied with the discovery orders] within the certified record, the supplemental certified record or ... the reproduced record.” Majority opinion at 1228 n. 2. I disagree with this assessment. In my view, these representations are credible because: (1) attorneys, as officers of the court, are prohibited from making false statements of material fact to judges;9 and (2) all of the parties agree that the present appeal became moot when Appellees recommended an in camera evaluation of the challenged items.10 Hence, we should not grant review because the unusual events that prompted this appeal are not likely to reoccur in future cases, and neither party will be prejudiced if the appeal is dismissed.

¶ 4 Furthermore, the majority’s contention that an appellant cannot invoke the attorney-client privilege to prevent the dissemination of confidential materials because the appellant’s attorney failed to object to an overbroad discovery request violates the established principle that only the client can waive the privilege. Indeed, none of the cases cited by the majority supports its holding in this case. Our Supreme Court did not address any attorney-client privilege issues in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003), or Kelley v. Mueller, 590 Pa. 91, 912 A.2d 202 (2006), and this Court’s analysis of the Commonwealth’s failure to invoke a non-existent “executive privilege” in Commonwealth v. Kauffman, 413 Pa.Super. 527, 605 A.2d 1243, 1246-1248 (1992), was dicta because the Commonwealth did not assert the privilege on appeal. See id. at 1248. Moreover, to the extent that the Kauff-man Court cited Goodrich-Amram 2d, Depositions and Discovery, section 4011 for the proposition that “a failure to claim the [attorney-client] privilege [during pretrial discovery] waives it,” id. at 1248, that statement is misleading because the relevant portion of section 4011(c) currently reads:

Any party ... may waive a right to invoke a privilege where the party fails to assert the privilege as an objection to a proposed discovery request. Indeed, the preclusion of disclosure in discovery *1236proceedings on the ground that a matter is privileged is not automatic. In addition, privilege as to documents may be waived by the previous act of permitting inspection of the documents, by injecting a privileged communication as an issue in the action, or by pleading a privileged matter as a defense. However, because the attorney-client privilege belongs to the client, only the client can waive its protections.

9A Goodrich-Amram 2d, Depositions and Discovery, § 4011(c):5, Amram Commentary (emphasis added). Accordingly, there is no pertinent legal authority for the majority’s position that an attorney who has not consulted with his clients can prospectively waive the attorney-client privilege by agreeing to produce certain items for discovery when the attorney knows or has reason to believe that those items contain privileged information.11

¶ 5 In fact, this Court has specifically held that an unopposed discovery request cannot trump the attorney-client privilege. In McGovern v. Hospital Service Ass’n, 785 A.2d 1012 (Pa.Super.2001), two health care providers and an individual were sued for breach of contract and tortious interference with contractual relations after they terminated an agency agreement with a corporation that provided managers for several health insurance programs. The defendants were served with a discovery request for various documents that allegedly contained confidential information but failed to object to the request within thirty days as required by Pa.R.C.P. 4009.12. When they subsequently invoked the attorney-client privilege to protect the sensitive files, the plaintiffs countered that all objections had been waived, and following a hearing, the defendants were ordered to produce every document identified in the discovery request.

¶ 6 On appeal, this Court reversed and remanded, finding that the trial court erred in ordering the wholesale surrender of all requested documents, including privileged materials, as a sanction for a discovery violation without first considering: “(1) the nature and severity of the discovery violation; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party; and (4) the ability to cure the prejudice.” Id. at 1019. Consistent with this view, the McGovern Court stated in relevant part:

While it remains to be seen if indeed the underlying materials fall under the protection of the attorney-client privilege, the trial court at the very least must conduct an in camera inspection of the documents to determine this contention. Pa.R.C.P. 4003.1 clearly states that subject to the provisions of Rules 4003.2 to 4003.5, “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....” PaJEt.C.P. 4003.1 (emphasis added). We are unaware of any case law that suggests a trial court may order the discovery of privileged material as a sanction let alone without any bal*1237ancing. Accordingly, we are extremely reluctant to affirm any order that compels full discovery when the information being sought may be privileged. We therefore find that failure to file objections [to a discovery request] within the thirty-day time period does not automatically waive the right to object.

Id. at 1018-1019.

¶ 7 The instant case is analogous to McGovern and should be decided accordingly. As evidenced by its Pa.R.A.P.1925(a) opinion, the trial court became irritated when it learned that Appellants did not comply with an August 2007 discovery request for computer-generated documents and that they failed to promptly inform the court or opposing counsel that their computers were inoperable. Thus, at the October 2007 hearing on Appellees’ motion to compel discovery, the court asserted that Appellants should send the computers to Appellees for inspection because the machines were “obviously no good to [Appellants].” N.T. Hearing, 10/22/07, at 11. In response, Appellants’ counsel, Kenneth Ferris, who was “sitting in” for lead counsel, Henry Van Blunk, stated that: (1) he had been told that technicians were working to resolve the problem; and (2) the computers’ hard drives might contain “attorney/client privileged information.” Id. at 6, 12. However, when the court subsequently asked how it should proceed, Mr. Ferris, who obviously never conferred with Appellants, inexplicably replied, “We can produce the computers.” Id. at 13.

¶ 8 While it remains unclear as to why Mr. Ferris represented that Appellants would willingly surrender their computers, one thing is apparent: the trial court should not have issued an order requiring Appellants to send the machines to Appel-lees after Mr. Ferris indicated that the hard drives could contain confidential information. Although no objection was lodged at the hearing, the trial court was aware that directing Appellants to relinquish their computers might cause privileged information to be compromised; however, the court consciously ignored that risk in order to expedite the discovery process and quite possibly to punish Appellants for failing to honor the August 2007 discovery request. This action should not have occurred. As we observed in McGovern, supra, a court that is presented with a discovery violation should not order or pressure a party to produce materials that may be subject to the attorney-client privilege without considering the nature and severity of the violation, the defaulting party’s willfulness or bad faith, prejudice to the opposing party, and the defaulting party’s ability to cure the prejudice. None of these factors was considered in the case subjudice, and there is no indication that the prejudice to Appellees, if any, could not have been cured by Appellants in an expedient manner. Indeed, the parties have advised this Court that the underlying dispute has already been resolved.

¶ 9 Considering the circumstances of this case, applicable law, and the fact that the attorney-client privilege is a critical facet of our justice system, I would hold that Appellants are not barred from invoking the privilege at this juncture, if this appeal was still properly before us. Accord Amtrak v. Fowler, 788 A.2d 1053, 1061 (Pa.Cmwlth.2001) (“[T]he defense of privilege is not waived by the untimely filing of an objection to a discovery request when counsel fails to timely raise that issue. In such an instance, it is counsel who should be penalized, not the client who holds the privilege.”).

. In response to Appellants’ emergency petition, wherein they averred that they could not comply with the discovery orders “without disclosing attorney-client privileged documents and information to opposing counsel and/or third parties,” this Court issued a per curiam order staying the proceedings and directing Appellants "to immediately take all steps necessary to retrieve any discoverable, non-privileged information from their computers within 30 days of the date of this order.” Order, 11/16/07, at 1.

. Rule 3.3(a)(1) of the Pennsylvania Rules of Professional Conduct provides that a lawyer shall not knowingly "make a false statement of material fact to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

. Herein, Appellants explain that "[t]he only reason that this appeal has continued is that Appellees have not ceased in their pursuit of the computer hardware at issue despite the trial court’s receipt of all recovered, responsive documents in which Appellants claim privilege.” Appellants’ reply brief at 8. As all parties agree that Appellants have complied with the spirit of the discovery orders by extracting the requisite information from their virus-infected computers, the order directing Appellants to produce the actual computers should be vacated as moot on remand. See Anastasoff v. United States, 235 F.3d 1054 (8th Cir.2000) (as appeal became moot when government agreed to issue tax refund, case was remanded to district court with instructions to vacate its previously-entered judgment in favor of government as moot and to consider taxpayer’s claim for attorneys' fees).

. The majority repeatedly cites to this Court’s recent decision in Carbis Walker, LLP v. Hill, Barth & King, LLC, 930 A.2d 573 (Pa.Super.2007), for the proposition that an attorney can unilaterally waive the attorney-client privilege. While Carhis Walker does address that topic, that decision is inapplicable here because it involved a scenario where a lawyer inadvertently sent a confidential letter to opposing counsel, thereby disclosing privileged information without his client’s knowledge. Id. at 576. This case is clearly distinguishable because: (1) no confidential documents have been sent to Appellees; (2) Appellants claim that surrendering their computers will result in the future dissemination of confidential materials; and (3) they are invoking the attorney-client privilege to prevent that result.