J-A07040-19

2019 PA Super 196

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* Former Justice specially assigned to the Superior Court.

KAREN NEWSUAN

v.

REPUBLIC SERVICES INC., BFI 

WASTE SERVICES OF PENNSYLVANIA 

LLC, BFI WASTE SYSTEMS OF NORTH 

AMERICA LLC, JOSHUA WATSON, 

MILTON BAKER, CHRISTOPHER 

GIOVETSIS, MARC BUCKLEY, MIKE 

ROBERTS AND CHRIS JOBSON, 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1248 EDA 2018

Appeal from the Order Dated April 11, 2018

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): August Term, 2017 No. 000528

BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: Filed June 20, 2019

Appellants/Defendants (hereafter “Republic Services”) file this 

interlocutory appeal from an adverse discovery-phase ruling in 

Appellee/Plaintiff Karen Newsuan’s (hereafter “Newsuan”) personal injury 

case in which she alleges that Republic Services’ negligence caused her serious 

worksite injury. At issue is whether the court erred in ruling that neither an 

attorney-client communications privilege nor an attorney work-product 

privilege applied to interviews between counsel for Republic Services and 16 

non-party Republic Services laborers identified by Newsuan as potential 

worksite eyewitnesses. 
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Republic Services claims the privileges attached either because each 

employee accepted corporate counsel’s offer to represent him or her 

throughout this litigation or, alternatively, because the interviews between its 

employees and corporate counsel had the singular purpose of preparing it for 

litigation. In accordance with decisional law recognizing a corporation’s 

privilege over communications solicited from its non-managerial employees 

by corporate counsel in preparation for trial, we vacate that part of the order 

requiring disclosure of such communications and corporate counsel’s related

work product, and we remand for further discovery consistent with this 

decision. 

On August 17, 2015, Karen Newsuan was working for her non-defendant 

employer as a recycling center facility sorter when a front-end loader crushed 

her leg, necessitating an above-the-knee amputation. On August 9, 2017, 

Newsuan commenced a personal injury action against the named defendants 

claiming their respective negligence as owners, supervisors, or operators 

caused her injuries. 

At the outset of discovery, Newsuan’s lawyer asked Republic Services 

for all contact information and any documented statements of 16 named 

employees1 who were working at the recycling center on the day she was 

injured. Newsuan’s lawyer considered the 16 employees potential fact 

____________________________________________

1 At the time Newsuan requested employee information, seven of the 16 

employees had terminated their employment with Republic Services. N.T., 

3/20/18, at 14. For the sake of expediency, we refer to all 16 as employee 

fact witnesses. 
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witnesses who could testify to both the accident itself and any dangerous 

conditions, practices, and procedures at the worksite. 

Counsel for Republic Services (at times hereinafter, “corporate counsel”)

did not provide this information. Confronted with Republic Services’ consistent 

refusal to produce employee contact information that it claimed was either 

irrelevant or privileged, Newsuan filed a Motion to Compel Discovery. 

On March 20, 2018, the trial court conducted a hearing, at which 

corporate counsel began by informing the court that “all of the current [and 

three of the seven former] employees for Republic Services [who] were 

working that evening, including the non-supervisory positions, have agreed to 

be represented by Republic Services as their counsel.” N.T. 3/20/18, at 11-

12, 14. Corporate counsel, therefore, argued that “Republic Services’ 

representation of the employees” precluded Newsuan from accessing any of 

them ex parte, pursuant to Pennsylvania Rule of Professional Conduct Rule 

4.2.

2

 

Counsel also invoked attorney-client privilege with respect to 

communications made during his interview with each employee. Newsuan 

rejoined that Republic Services’ actions violated her rights under Pennsylvania 

Rule of Professional Conduct 3.4, Fairness to Opposing Party and Counsel, 

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2 Pennsylvania Rule of Professional Conduct 4.2 provides that a lawyer shall 

not communicate about the subject of a suit with a person the lawyer knows 

to be represented by another lawyer in the matter, unless the lawyer has 

consent of the other lawyer or is authorized by the court. See PA ST RPC Rule 

4.2 
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which provides, inter alia, that a lawyer shall not unlawfully obstruct another 

party’s access to evidence.

The trial court denied the validity of the purported attorney-client 

relationship between counsel and the employees. Initially, it opined that 

Republic Services’ counsel had improperly telephoned the prospective 

witnesses and offered legal services in violation of Pennsylvania Rule of 

Professional Conduct Rule 7.3.3 Even more concerning to the court, though,

was corporate counsel’s failure to explain to the employee witnesses the 

potential conflict that could arise during his dual representation of corporate 

employer and employee. Citing Pennsylvania Rule of Professional Conduct 

1.7, discussed infra in n.4, the court explained:

[Republic Services’] lawyers admitted in court that they did not 

inform these current and former employees about any potential 

conflicts the . . . lawyers may have in representing the companies 

being sued and at the same time representing the current or 

former employee fact witnesses who may have information that is 

adverse to the companies being sued. The Pennsylvania Rules of 

Professional Conduct require that when a lawyer represents 

multiple parties who may have adverse interests or loyalties, the 

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3 Pennsylvania Rule of Professional Conduct 7.3 acknowledges the potential 

for abuse when a lawyer initiates a targeted communication to a prospective 

client, particularly “direct in-person, live telephone or real-time electronic 

contact with someone known to need legal services. These forms of contact 

subject a person to the private importuning of a trained advocate, in a direct 

interpersonal encounter. . . . The situation is fraught with the possibility of 

undue influence, intimidation, and over-reaching.” See PA ST RPC Rule 7.3, 

Explanatory Comment [2]. The explanatory comment goes on to explain, 

“There is far less likelihood that a lawyer would engage in abusive practices . 

. . in situations in which the lawyer is motivated by considerations other than 

the lawyer’s pecuniary gain.” Id. at [5]. 
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lawyers must disclose the conflict and make sure that all the 

parties they represent waive any conflict they have. ([PA ST RPC] 

1.7: Conflict of Interest: Current Clients). The lawyers for 

[Republic Services] did not explain the potential conflict nor did 

they get informed consent from these fact witnesses to waive any 

conflicts.

Trial Court Order, 4/11/18, at ¶ 8.

In light of this record, the trial court viewed counsel’s actions with 

respect to the 16 employees as an unfair discovery tactic designed to prevent 

Newsuan from freely obtaining statements from fact witnesses:

[Republic Services’] lawyers’ conduct in refusing to provide 

contact information of potential fact witnesses in order to contact 

them first and then offer to represent them for free, effectively 

foreclosed [Newsuan’s] lawyers from fair access to interview these 

fact witnesses without having Republic Services’ lawyers present. 

Republic Services’ lawyers’ conduct compromised the fairness in 

the litigation process by obstructing Newsuan’s lawyers’ access to 

evidence. (Pennsylvania Rule of Professional Conduct 3.4, 

Fairness to Opposing Party and Counsel).

Id. at ¶ 10.

The trial court, therefore, entered an order directing Republic Services

to perform, inter alia, the following tasks:

• Provide all known personal and professional information about 

the 16 current and/or former employees;

• Provide all written communications and notes of oral interviews

occurring prior to corporate counsel’s offer of representation,

“since these are not attorney-client privileged 

communications”;

• Explain to the 16 employees that corporate counsel has

potential conflicts in representing the companies being sued at 

the same time he is offering to represent current and former 

employees who are simply fact witnesses. Counsel may not 
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represent an employee fact witness until that employee signs 

a written waiver form after receiving proper explanation 

regarding the conflict. Counsel shall inform Newsuan of which 

employees have and have not signed a written waiver within 

50 days of the court’s order;

• Refrain from engaging in any efforts to obstruct Newsuan’s 

lawyers from accessing witnesses or evidence in this case.

Trial Court Order, 4/11/18, at 3-4. The court further directed all counsel to 

preface any interview of a prospective non-party, fact witness with an 

advisement that the witness has the right to decline the interview and has no 

need for a lawyer in this litigation. Id. at 4. In the event of such declination, 

the court explained, the parties could subpoena such witnesses. Id.

On April 20, 2018, Republic Services filed the instant interlocutory 

appeal. Issues raised in its court-ordered Pa.R.A.P. 1925(b) statement and

incorporated in its subsequent Statement of Questions Presented are, as 

follows: 

1. When the attorney for a corporate defendant meets with 

current and former employees of the defendant, and agrees to 

represent those employees at deposition, may the attorney 

properly assert attorney-client and work-product privileges as 

to his meetings with each witness?

2. Is an order requiring disclosure of privileged information 

properly appealable as a collateral order under Rule 313?

Appellant’s brief, at 3.

Initially, we address whether the order before us is appealable as a 

collateral order under Pa.R.A.P. 313. Our Supreme Court has held that orders 

overruling claims of privilege and requiring disclosure are immediately 
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appealable. See Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011); see 

also Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d. 372 

(Pa.Super. 2012). Likewise, the Supreme Court has held that appeals from 

orders granting discovery in the face of colorable claims of attorney-client 

privilege are appealable under the collateral order doctrine. Harris, supra; 

Custom Designs, supra (citing Law Office of Douglas T. Harris, Esquire 

v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 1228–1229 

(Pa.Super. 2008)). Accordingly, we shall consider the merits of the present 

appeal.

Republic Services claims the trial court erred when it ordered production 

of witness statements and attorney notes made during counsel’s interviews 

with the 16 employee witnesses. Republic Services maintains the statements 

represent privileged communications either because counsel and each 

employee formed a specific attorney-client relationship at the end of the 

interview or because the employee statements were acquired with the specific 

purpose of enabling counsel to advise corporate client/employer Republic 

Services in the present civil suit. Counsel’s notes relating to the interviews 

similarly receive protection under the work product doctrine, Republic Services 

argues.

Our courts have outlined the parameters of the attorney-client privilege 

as follows:

“The question of whether attorney-client privilege protects a 

particular communication from disclosure is a question of law. As 

such, we employ a de novo standard of review and our scope of 
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review is plenary.” Carbis Walker, LLP v. Hill, Barth & King,

LLC, 930 A.2d 573, 581 (Pa.Super. 2007).

In Pennsylvania, the attorney-client privilege operates in a twoway fashion to protect confidential client-to-attorney or attorneyto-client communications made for the purpose of obtaining or 

providing professional legal advice. Gillard v. AIG Ins. Co., 15 

A.3d 44, 59 (Pa. 2011); see 42 Pa.C.S. § 5928. In describing the 

purpose of the privilege, we have said: “The attorney-client 

privilege exists to foster a confidence between attorney and client 

that will lead to a trusting and open dialogue.” Gocial v. 

Independence Blue Cross, 827 A.2d 1216, 1222 (Pa.Super.

2003).

Pennsylvania law imposes a shifting burden of proof in disputes 

over disclosure of communications allegedly protected by 

attorney-client privilege. The party invoking a privilege must 

initially “set forth facts showing that the privilege has been 

properly invoked; then the burden shifts to the party seeking 

disclosure to set forth facts showing that disclosure will not violate 

the attorney-client privilege, e.g., because the privilege has been 

waived or because some exception applies.” Nationwide Mut. 

Ins. Co. v. Fleming, 924 A.2d 1259, 1266 (Pa.Super. 2007) 

(citations omitted), aff'd, 605 Pa. 468, 992 A.2d 65 (2010). 

Accordingly, “[i]f the party asserting the privilege does not 

produce sufficient facts to show that the privilege was properly 

invoked, then the burden never shifts to the other party, and the 

communication is not protected under attorney-client privilege.” 

Id. at 1267.

Four elements must be satisfied in order to invoke successfully the 

protections of attorney-client privilege:

1) The asserted holder of the privilege is or sought to 

become a client.

2) The person to whom the communication was made 

is a member of the bar of a court, or his 

subordinate.

3) The communication relates to a fact of which the 

attorney was informed by his client, without the 

presence of strangers, for the purpose of securing 

either an opinion of law, legal services or 

assistance in a legal matter, and not for the 

purpose of committing a crime or tort.
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4) The privilege has been claimed and is not waived 

by the client.

Id. at 1264 (citations omitted).

[Where] the attorney-client privilege has been invoked by a 

corporate client[,] our Commonwealth Court has previously 

recognized “this privilege attaches to communications made by 

corporate as well as individual clients.” Maleski v. Corporate 

Life Insurance Co., 163 Pa.Cmwlth. 36, 641 A.2d 1, 3 (1994) 

(citing Upjohn v. United States, 449 U.S. 383, 101 S.Ct. 677, 

66 L.Ed.2d 584 (1981)).

Custom Designs, 39 A.3d at 376–77.

[E]stablished Pennsylvania law also makes clear that it is 

the client who owns this privilege: “The purpose of the attorneyclient privilege is to benefit the client, and accordingly, the client 

is the holder of the privilege.” Maleski[, 646 A.2d at 4].

Additionally, “the right to assert the privilege is that of the client.” 

Commonwealth v. McKenna, 206 Pa.Super. 317, 213 A.2d 223, 

226 (1965) (citing Appeal of McNulty, 135 Pa. 210, 19 A. 936 

(1890)). The traditional canon remains intact, i.e., the client holds 

the attorney-client privilege[.]

Knopick v. Boyle, 189 A.3d 432, 440 (Pa.Super. 2018)

As discussed, the trial court determined that neither the employees in 

their individual capacities, through counsel, nor Republic Services as corporate 

client invoked successfully the attorney-client privilege. While our review of 

the record leads us to agree with the court’s reliance on pertinent rules of 

professional conduct to reject the existence of an attorney-client relationship 

formed directly between counsel and the 16 fact witnesses,

4 we depart from 

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4 We adopt the opinion of the trial court to the extent it denies the attorneyclient relationship because counsel’s dual representation of each employee 

and the corporation creates a concurrent conflict of interest. Under PA ST RPC 

1.7, a lawyer shall not represent a client if the representation involves a 
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the court’s order and opinion to the extent neither acknowledges standing in 

the corporate client to assert protection of the communications at issue. That 

is, we find Republic Services possesses a privilege over the communications 

supplied at the behest of corporate counsel to assist him in advising Republic 

Services in the present litigation.

In Gillard, the Pennsylvania Supreme Court clarified the scope of 42 

Pa.C.S. § 5928, Confidential communications to attorney,5 by holding that

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concurrent conflict of interest. A concurrent conflict of interest exists if, inter 

alia, there is a significant risk that the representation of one or more clients 

will be materially limited by the lawyer’s responsibilities to another client. Pa. 

ST RPC 1.7(a)(2). 

Problematic for Republic Services is the significant risk that an employee fact 

witness may testify against Republic Services’ interest with respect to working 

conditions at the recycling center. It is foreseeable, for example, that a 

current or former employee testifies to some deficiency with respect to the 

formation or enforcement of safety rules or with some other aspect of 

managerial oversight which would bolster the claim of negligence against the 

corporate defendant. Confronted with such testimony, counsel must either 

develop the testimony to advance the client witness’s interest at the expense 

of corporate client, or impeach the client witness for the benefit of the 

corporate client. In either instance, counsel’s responsibility to one client will 

materially limit his representation of the other client.

Therefore, we agree with the trial court that only upon the employee’s 

informed consent to retain counsel despite the risk of conflict, which consent 

is accomplished through the employee’s completion of a waiver form clearly 

notifying him or her of the conflict, is a valid attorney-client relationship 

formed.

5 Section 5928 of the Judicial Code provides: 

In a civil matter counsel shall not be competent or permitted to 

testify to confidential communications made to him by his client, 
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“the attorney-client privilege operates in a two-way fashion to protect 

confidential client-to-attorney or attorney-to-client communications made for 

the purpose of obtaining or providing professional legal advice.” Id. at 59. In 

eschewing a literal statutory interpretation that would narrow the scope of the 

privilege to include only client-to-attorney communications, our Supreme

Court declared that advancement of the principles underlying the privilege 

required a broader interpretation protecting attorney-to-client 

communications as well. 

In so deciding, and of particular importance for our present analysis, the 

Court explained that its approach dovetailed with the rationale expressed in

the United States Supreme Court’s decision in Upjohn Co. v. U.S., 449 U.S. 

383 (1981). Specifically, Upjohn held that the attorney-client privilege 

applied to communications made by Upjohn Corporation’s middle and lowerlevel employees to corporate counsel in response to counsel-drafted

questionnaires designed to assist counsel in advising Upjohn in legal matters. 

Narrowing the scope of the privilege to protect only “control group employee” 

communications to corporate counsel, the High Court reasoned, would 

frustrate the purposes of the privilege. Id. at 392. 

Such purposes include not only enabling “corporate attorneys to 

formulate sound advice when their client is faced with a specific legal problem” 

____________________________________________

nor shall the client be compelled to disclose the same, unless in 

either case this privilege is waived upon the trial by the client.

42 Pa.C.S.A. § 5928.
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but also promoting “the valuable efforts of corporate counsel to ensure their 

client’s compliance with the law.” Id. There may be instances, the Court 

emphasized, where middle, or even lower, level corporate employees alone 

have information vital to counsel’s mission to provide the corporation with 

legal advice. Id.

This Court, too, has acknowledged that Upjohn, while not binding upon 

courts of this Commonwealth, nevertheless represents persuasive authority

whose rationale our courts have adopted. In Custom Designs, for example,

we reviewed whether the trial court erred in granting a motion to compel 

discovery of two employee-prepared memoranda in the possession of a 

corporate defendant who had refused production citing attorney-client 

privilege. After outlining both the facts and principles involved in Upjohn, 

and acknowledging Pennsylvania state and federal decisions applying Upjohn

under similar circumstances, we observed: 

The holding in Upjohn specifies that communications by 

corporate employees to corporate counsel may fall within the 

scope of the attorney-client privilege when they are kept 

confidential and when they are made at the behest of counsel and 

with the goal of furthering counsel's provision of legal advice to 

the client, the corporation. 

Custom Designs, 39 A.3d at 379.

After setting forth the Upjohn framework, however, we determined the 

corporate defendant/appellant failed to uphold its burden to produce evidence 

that the memoranda in question had been prepared at the request of 

corporate counsel for the purpose of enabling counsel to provide legal advice 
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to the corporation. Custom Designs, 39 A.3d at 379-80. Instead, evidence 

revealed a solely commercial reason for preparation of the memoranda. 

Accordingly, we deemed meritless the corporation’s claim of attorney-client 

privilege and affirmed the trial court’s order requiring production of the 

memoranda. Id. at 380.

Guided by this jurisprudence, we observe from the transcript of the 

March 20, 2018, hearing that corporate counsel obtained statements from the 

16 current and former employees6 with the singular purpose of providing legal 

advice to Republic Services with respect to the present litigation. There was 

no indication from either corporate counsel’s narrative to the court or the 

circumstances of the present case that any employee sought legal consultation 

or needed legal advice during the interviews. Indeed, the trial court aptly 

noted that the non-party, fact witness employees had no personal legal 

interest in the present matter.7 

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6

In consideration of the purpose underlying the privilege, we deem the 

relevant decisional law equally applicable to communications from both 

current and former employees in this matter. “The privilege exists to protect 

not only the giving of professional advice to those who can act on it but also 

the giving of information to the lawyer to enable him to give sound and 

informed advice.” Upjohn, 449 U.S. at 390. Here, nothing in the record 

distinguishes the two sets of employees with respect to how helpful their 

communications about their worksite observations would be to corporate 

counsel in carrying out his task of advising Republic Services. Adopting a 

broader scope for the privilege in this regard is consistent with the broader 

scope applied in other aspects.

 

7 Because we discern no basis upon which to disagree with the trial court’s 

observations in this regard, we conclude the present situation is not one in 
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which the absence of so-called “Upjohn warnings,” see infra, undermines the 

corporation’s privilege over counsel-employee communications. Regarding 

such warnings, this Court has stated:

Although Upjohn itself did not involve warnings or a discussion of 

a lawyer's explanation regarding the scope of his representation, 

the Supreme Court observed that, under certain situations, 

information about the extent of the attorney-client relationship 

between a corporate counsel and an employee might be 

necessary. As a result of that case, “Upjohn warnings” have 

evolved that specifically inform a corporate employee that 

corporate counsel represents the corporation and not the 

individual, and that the corporation possesses the attorney-client 

privilege. See Grace M. Giesel, Upjohn Warnings, the Attorney–

Client Privilege, and Principles of Lawyer Ethics: Achieving 

Harmony, 65 U. Miami L.Rev. 109, 110–111 (Fall 2010).

Commonwealth v. Schultz, 133 A.3d 294, 312-14 (Pa. Super. Ct. 2016). 

In Schultz, a university vice-president consulted with the university’s general 

counsel for purposes of preparing for his grand jury testimony relative to a 

criminal investigation of a former employee. Counsel believed at the time that 

she did not represent the vice-president’s personal interests, but she failed to 

apprise him of the limits of her representation or the difference between 

agency representation and personal representation, nor did she provide 

Upjohn warnings to him. Subsequently, vice-president was charged with 

perjury, and counsel was subpoenaed to testify regarding the vice-president’s

communications with her. The trial court denied the vice-president’s motion 

to preclude such testimony pursuant to attorney-client privilege. On appeal, 

this Court reversed. We determined the vice-president properly asserted 

attorney-client privilege under such circumstances because he reasonably 

believed she represented his personal interests for purposes of his grand jury 

testimony. 

Unlike the putative client in Schultz—a high-ranking university official who 

sought representation given his legal exposure in an underlying criminal case 

against a high-profile university employee—the fact witnesses here neither 

sought legal advice, consulted with corporate counsel regarding personal legal 

matters, nor had any apparent need for legal representation regarding the 

present litigation. Instead, it is undisputed that corporate counsel initiated 

contact with the witnesses, identified himself as counsel for Republic Services, 
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Furthermore, counsel made manifest to the employees the overarching 

corporate-interest purpose of the interviews when he informed them that 

Republic Services would also provide them with counsel during the litigation. 

Finally, while the resultant attorney-client relationship that counsel and the 

employees believed they had formed with one another was, as discussed 

above, invalid for reasons of potential conflict of interest without informed 

consent, we nevertheless find that their apparent agreement to keep their 

communications confidential satisfies the confidentiality requirement 

expressed in Upjohn. 

Accordingly, we conclude the particular communications shared 

between Republic Services’ employees and corporate counsel fall within 

Republic Services’ scope of attorney-client privilege. We, therefore, vacate

the trial court’s order requiring Republic Services to disclose such

communications. 

Given the learned trial court’s appropriate concerns, however, that 

corporate counsel’s handling of the 16 employees had—whether or not by 

design—the effect of blocking Newsuan’s access to factual statements 

pertinent to the accident, we reiterate the clarification in Upjohn that the 

____________________________________________

and explained he was calling because Republic Services was defending against 

a lawsuit. While counsel muddled the relevant attorney-client scheme 

somewhat by ending the interviews with an offer to represent the employees

in their capacities as fact witnesses during trial, the totality of circumstances 

as developed in the record are such that we conclude the witnesses had 

sufficient notice that counsel took their statements solely for Republic 

Services’ potential use. 
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privilege “only protects disclosure of communications; it does not protect 

disclosure of the underlying facts by those who communicated with the 

attorney.” Id. at 395; see also Gillard, 15 A.3d at 52 n.8 (acknowledging 

that the privilege does not protect clients from factual investigations).

Therefore, it is beyond reasonable dispute that Newsuan may seek ex 

parte interviews with the 16 potential fact witnesses—to the extent they are 

not represented by counsel—regarding their factual observations relevant to 

the incident in question in the same manner as corporate counsel has, and 

she may thereafter seek further discovery of available facts through 

depositions and interrogatories, as provided in the Pennsylvania Rules of Civil 

Procedure.8 The scope of such facts would include, for example, a description 

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8 We are mindful of decisional law recognizing that application of the privilege 

to employee communications may adversely affect the truth-determining 

function of discovery. Relevant jurisprudence acknowledges, however, that, 

on balance, the justification for the privilege remains: 

“We have often recognized the conflict inherent in the attorneyclient privilege. On the one hand, our precedent disfavors 

evidentiary privileges which are “in tension with the truthdetermining process of the justice system,” as they result in the 

exclusion of evidence.” Levy v. Senate of Pennsylvania, 65 

A.3d 361, 368 (Pa. 2013). Nevertheless, we have emphasized the 

need for protection of various types of communications though the 

establishment of privileges. Of these privileges, the attorneyclient privilege is often considered “the most revered.” In re: 

Investigating Grand Jury of Philadelphia County, 527 Pa. 

432, 593 A.2d 402, 405 (1991).

The attorney-client privilege as codified by the General Assembly, 

42 Pa.C.S. § 5928, and applied by our courts is intended to foster 

open discussion between counsel and client. Only with full 
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of the conditions and operations of the recycling center—with specific 

reference to the “tipping floor” area—as the witness remembers them to exist 

proximate to the time of the incident, and what, if anything, the employee 

may have observed regarding the incident, as these matters are strictly 

factual, would have been open and apparent to non-defendant employees at 

the scene—including Newsuan, herself—and, therefore, do not involve 

confidential information of any kind.

Next, we address Republic Services’ challenge to the trial court’s order 

directing the production of corporate counsel’s notes and other work product

related to his interviews with the 16 employee fact witnesses. 

“The underlying purpose of the work product doctrine is to 

guard the mental processes of an attorney, providing a privileged 

area within which he can analyze and prepare his client's case.”

Bagwell v. Pennsylvania Dep't of Educ., 103 A.3d 409, 415–

16 (Pa.Cmwlth.Ct. 2014), appeal denied, 632 Pa. 678, 117 A.3d 

1282 (2015) (quoting Commonwealth v. Sandusky, 70 A.3d 

886, 898 (Pa. Super. 2013), appeal denied, 622 Pa. 767, 81 

A.3d 77 (2013)).

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information from the client can an attorney provide relevant and 

sound legal advice.

Pittsburgh History & Landmarks Found. v. Ziegler, 200 A.3d 58, 80 (Pa. 

2019). But see Monah v. W. Pennsylvania Hosp., 44 Pa. D. & C.3d 513, 

523 (Pa.Com.Pl. 1987) (opining that broad construction of privilege to 

communications to corporate counsel from corporate employee who witnessed 

incident may unfairly disadvantage adverse party, who, unlike corporation, 

will not know if corporate employee’s subsequent statements are consistent 

with protected communication); Gillard, at 58 (acknowledging potential for 

abuses). 
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Work product Rule 4003.3 of the Rules of Civil Procedure governs 

work product doctrine:

Subject to the provisions of Rules 4003.4 and 4003.5, 

a party may obtain discovery of any matter 

discoverable under Rule 4003.1 even though prepared 

in anticipation of litigation or trial by or for another 

party or by or for that other party's representative, 

including his or her attorney, consultant, surety, 

indemnitor, insurer or agent. The discovery shall not 

include disclosure of the mental impressions of a 

party's attorney or his or her conclusions, opinions, 

memoranda, notes or summaries, legal research or 

legal theories. With respect to the representative of 

a party other than the party's attorney, discovery shall 

not include disclosure of his or her mental 

impressions, conclusions or opinions respecting the 

value or merit of a claim or defense or respecting 

strategy or tactics.

Pa.R.C.P. No. 4003.3.[] Whether the trial court properly 

interpreted and applied Rule 4003.3 presents a question of law. 

Barrick v. Holy Spirit Hosp. of the Sisters of Christian 

Charity, 32 A.3d 800, 808 (Pa. Super. 2011), aff'd, 625 Pa. 301, 

91 A.3d 680 (2014). Our standard of review is de novo and our 

scope of review is plenary. Id.

Estate of Paterno v. Nat'l Collegiate Athletic Ass'n (NCAA), 168 A.3d 

187, 197–98 (Pa.Super. 2017).

The trial court predicated the order directing production of counsel’s 

interview notes on the conclusion that the interviews preceded a time when a 

relevant attorney-client privilege had attached. We have determined, 

however, that the particular communications were, and remain, privileged. 
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With its predicate thus undermined, the court’s attorney work-product order 

cannot stand.9

Order vacated. Case remanded for further proceedings consistent with 

this decision. Jurisdiction relinquished. 

Judge Dubow has joined the Opinion.

Judge Olson concurs in the result.

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9 Even if we agreed with the trial court’s opinion rejecting application of the 

attorney-client privilege to corporate counsel’s interviews with employees, we 

would conclude, nevertheless, that the attorney work-product doctrine 

precludes disclosure of corporate counsel’s recorded mental impressions, 

conclusions, opinions, memoranda, notes or summaries, legal research or 

legal theories relating to the interviews. In support of this conclusion, we rely 

on the relevant observations of our Supreme Court, which recognized, 

generally, a broader scope to the attorney work-product privilege that includes 

non-confidential materials prepared by the attorney in anticipation of 

litigation: 

[The work-product] privilege, unlike the attorney client privilege, 

does not necessarily involve communications with a client. . . . 

Rule 4003.3, on its overall terms, manifests a particular concern 

with matters arising in anticipation of litigation. See Nat’l R.R. 

Passenger Corp. v. Fowler, 788 A.2d 1053, 1065 (Pa.Cmwlth. 

2001) (indicating that “[t]he ‘work product rule’ is closely related 

to the attorney-client privilege but is broader because it protects 

any material, regardless of whether it is confidential, prepared by 

the attorney in anticipation of litigation”). But see Sedat, Inc. 

[v. Department of Environmental Resources, 641 A.2d 1243, 

1245] (holding that “anticipation of litigation is not a prerequisite 

to the application of the work product doctrine as it pertains to the 

work product of attorneys acting in their professional capacity.”). 

Thus, while the two privileges overlap, they are not coterminous.

Gillard, 15 A.3d at 59 n.16.
J-A07040-19

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/20/2019