Picture a telephone call between an attorney and her client.

On the call, the attorney relays her candid assessment of the client's case. During the call, the client takes down detailed written notes closely summarizing what the lawyer says. Not unusually or surprisingly, the client does not send those notes back to the attorney after the call. In a decision last month in Mwambu v. Monroeville Volunteer Fire Co. No. 4, the Pennsylvania Commonwealth Court held that the attorney-client privilege would not protect those notes from discovery because the client did not relay the notes back to the lawyer, and the notes were not therefore "communications" eligible for privilege protection.[1]

That holding appears flawed and irreconcilable with  Pennsylvania Supreme Court precedent. The Mwambu decision also touches on several other important attorney-client privilege and work-product issues and, for those reasons, warrants scrutiny.

Facts and Trial Court Proceedings

Kenyatta Mwambu, a pedestrian, was struck and injured by an ambulance operated by the defendant fire company. During discovery, the fire company withheld from production, via redactions, passages from notes written by employees of the fire company's insurer.[2]

The fire company also served a privilege log in support of the redactions. The log supplied the dates of the note entries, the notes' authors, and a code identifying the "privilege basis" for the redactions; for instance, "AC" for the attorney-client privilege and "MI" for mental impression and work product.[3]

In response to a motion to compel, and after argument and an in-camera review of the notes, the trial court largely granted Mwambu's motion to compel. The fire company then filed an interlocutory appeal to the Commonwealth Court.

Immediate Appealability — Collateral Order Doctrine

As with most privilege and work product appeals, the fire company's appeal was interlocutory. The Commonwealth Court did not reflexively state that appeals from interlocutory orders denying an invocation of the attorney-client privilege or the work-product doctrine are permissible as of right, as some decisions suggest.[4]

Instead, the Mwambu court held that the appeal was permissible under Pennsylvania Rule of Appellate Procedure 313's collateral order doctrine. The court took pains to walk through how the fire company's appeal satisfied the elements of the collateral order doctrine.

Appellants seeking to take interlocutory appeals from an order denying the protection of the attorney-client privilege or the work-product doctrine should not assume that such an interlocutory appeal automatically will be accepted as valid but, instead, should be sure that the appeal satisfies Rule 313 and be prepared to demonstrate and articulate how it does so.

Privilege and the Burden of Proof

The Mwambu court recited the elements of the attorney-client privilege as:

1. "The asserted holder of the privilege is a client or is sought as a client of the attorney involved in the communications."
2. "The communication was made by a member of the bar of a court or his ... subordinate, or to such a person by a client."
3. "The communication relates to a fact of which the attorney was informed by the client, without the presence of strangers, for the purpose of securing an opinion of law, legal services or assistance in a legal matter."
4. "The client has not waived the [privilege] claimed."

The court also repeated Pennsylvania law's somewhat ambivalent feelings about the attorney-client privilege.

On the one hand, the Mwambu court praised the privilege as "important" and "deeply rooted" in Pennsylvania law because it "serves important interests," principally to foster open discussion between client and counsel. On the other hand, the court stated that the privilege is "generally not favored" because it purportedly obstructs "the search for truth."[5]

After stating accurately that, under Pennsylvania law, the burden of proof falls on the proponent of the privilege, the Mwambu court held that "a party asserting the privilege must show, by record evidence such as affidavits, sufficient facts as to bring the communication at issue within the narrow confines of the privilege."[6]

While the court later analyzed the fire company's privilege log for adequacy, the court did not make particularly clear that the proponent of the privilege customarily and permissibly satisfies its burden initially through the generation and production of a privilege log, and not by way of evidence, such as affidavits.[7]

The Mwambu court stated that "where the basis for privilege is not obvious, bald assertions are not enough; the asserting party must provide sufficient facts, through record evidence, such as affidavits, to meet it burden."[8]

Opponents of the privilege, of course, are not particularly predisposed to accept invocations of the privilege as obviously correct. Consequently, Mwambu may hand opponents a good-sized cudgel to impose on privilege proponents the significant burden and expense of having to supply record evidence, such as affidavits, in order to withhold documents and communications that may not be deemed obviously privileged on the face of even a detailed log.

Client Notes

Some of the notes at issue in Mwambu included "verbatim communications or summaries of conversations" between client and counsel.[9] Yet, relying on the truism that the privilege only applies to communications, the court held that the privilege did not protect the notes because the notes themselves were never communicated back to counsel:

It is the notes themselves which must have been communicated between counsel and [client] regardless of whether the notes incorporate details that were previously included in a privileged communication.[10]

With due respect to the Mwambu court, this is wrong.

Under Mwambu, if an attorney takes detailed notes of a confidential communication with his client, the attorney-client privilege would not protect those notes from discovery if the notes themselves were not communicated back to the client. Yet, each and every lawyer would and should withhold such notes from disclosure based on the attorney-client privilege — and most likely the work-product doctrine, too — because the disclosure of those notes would reveal privileged communications between client and counsel.

In stark contrast to the holding in Mwambu, the Pennsylvania Supreme Court's 1991 opinion in In re: Investigating Grand Jury held that:

Whether the note-taking was prompted by a need to organize the events discussed or to aid a less than perfect memory is of no moment. The notes taken during the privileged communications between the [client] and his counsel must be accorded the same protection as the discussions from which they were derived.[11]

Likewise, with respect to such notes to self, a leading treatise on the attorney-client privilege, "Attorney-Client Privilege in the U.S.," states that, even when such notes are not circulated to others:

That does not mean that the [notes] cannot be privileged communications, however. If they … reveal the contents of a privileged communication … they should be afforded the protection of the privilege.[12]

Given the Pennsylvania Supreme Court's controlling holding in Investigating Grand Jury, Mwambu's analysis of the notes appears to be a misstatement of Pennsylvania law.

Sufficiency of Privilege Log

The Mwambu court was not satisfied with the level of detail in the fire company's privilege log. The log lacked any text to support the codes identifying the basis for withholding the notes at issue.

The absence of such detail deprived the trial court of useful information with which to assess the privilege claimed and led the Commonwealth Court to conclude that the fire company failed to satisfy its burden of proof.[13]

Privilege proponents have the burden of proof and need at the outset to provide enough detail in a log to demonstrate satisfaction of the elements of the privilege and/or the work-product doctrine.

Work-Product Doctrine

The court turned to the work-product doctrine after addressing the attorney-client privilege. At the start of its work-product analysis, the court asserted that the work-product doctrine "protects materials, not communications."[14] That also seems inaccurate under Pennsylvania's work-product rule.

An oft-quoted passage from the official comments to Pennsylvania Rule of Civil Procedure 4003.3 states that the work-product rule "is carefully drawn and means exactly what it says."

Rule 4003.3 says nothing of "materials" and does not limit its protection to tangible items. Instead, it protects multiple intangibles, such as attorneys' conclusions, opinions and legal theories, and also protects certain mental impressions, conclusions and opinions of nonattorneys.

If the work-product doctrine protected only materials, what would prevent a party from issuing a subpoena to force opposing counsel to testify about his or her opinions or legal theories about a pending matter?

Conclusion

It is correct that the attorney-client privilege applies to communications and does not protect underlying facts from disclosure. That concept, however, continues to trip up some courts.

Multiple courts have wrongly refused to apply the privilege to attorney-client communications that recite factual matters.[15] With Mwambu, the Pennsylvania Commonwealth Court joins the list of courts that have stumbled on this issue.

Production of the notes at issue in Mwambu would reveal client-counsel communications that the court recognized as privileged. The privilege therefore should protect those notes in order to protect the confidential communications.

Protection of such client notes from discovery would not immunize underlying facts from discovery. Those remain subject to discovery through interrogatories, subpoenas and deposition questioning.

Mwambu also illustrates the need for practitioners to keep the attorney-client privilege and the work-product doctrine distinct analytically from each other. Different tests, elements, rules and exceptions will apply to the two separate doctrines. The privilege might not apply to a particular document, but work-product doctrine protection may be available for that same document.

The task of assessing and logging documents or other communications that need to be withheld as privileged or otherwise protected from discovery can be tedious and time-consuming, and, for the client, an expensive undertaking, without any dopamine rush from a perception of doing something that seems particularly meaningful. Therefore, there is a tendency perhaps to not dedicate acute care and attention to the initial work that Pennsylvania law requires for a successful invocation of the privilege and the work-product doctrine.

There are risks from such an approach. In Mwambu, it seems that a relative lack of detail in its privilege log got the fire company off on the wrong foot with the trial court, a misstep from which the fire company never recovered, and a misstep that opened the door for the courts to make errors of their own.

Better for a party and its lawyers to invest the required care and attention upfront, in order to minimize risks of not meeting a privilege proponent's burden of proof, as well as the risks of having clients suffer from any judicial errors farther down the line.

Notes

1. See Mwambu v. Monroeville Volunteer Fire Co. #4, No. 1128 C.D. 2020, 2022 WL 761570 at *4 (Mar. 14, 2022).
2. Id. at *1.
3. Id.
4. See, e.g., Commonwealth v. Harris, 32 A.3d 243, 249 (Pa. 2011).
5. Mwambu, 2022 WL 761570 at *4.
6. Id.
7. See Fisher v. Erie Nationwide Mut. Ins. Co ., 258 A.3d 451, 461 n.8 (Pa. Super. 2021).
8. Mwambu, 2022 WL 761570 at *5.
9. Without any analysis or explanation, the Court stated that there was "no dispute that … the insurance carrier is a client of [the Fire Company's] counsel." Perhaps that was factually so, and counsel jointly represented both the insurer and the insured, but often that issue is not as clear as the Mwambu Court found it to be. See Mine Safety Appliances Co. v. North River Ins. Co ., 73 F. Supp. 3d 544, 573-75 (W.D. Pa. 2014).
10. Mwambu, 2022 WL 761570 at *4.
11. In re Investigating Grand Jury , 593 A.2d 402, 406 (1991); accord Ford-Bey v. Professional Anesthesia Services of North America, LLC , 229 A.3d 984, 992 (Pa. Super. 2020); see also Welch v. Bd. of Directors of Wildwood Golf Club , 146 F.R.D. 131, 139 (W.D. Pa. 1993)(meeting minutes were protected without regard to whether minutes themselves were communicated back to counsel).
12. Rice, Paul R. et al, 1 Attorney-Client Privilege in the U.S. § 5:19 (Dec. 2021).
13. Mwambu, 2022 WL 761570 at *5.
14. Id. at *5.
15. See, e.g., U.S. Fidelity v. Barron Ind., Inc. , 809 F.Supp. 355, 364 (M.D. Pa. 1992).

Reprinted with permission of Law360.