J-A16007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN J. ABRAHAM, M.D.

v.

JESSICA PHILLIPS AND REID 

PHILLIPS

APPEAL OF: THOMAS JEFFERSON 

UNIVERSITY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1050 EDA 2021

Appeal from the Order Entered May 12, 2021

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

No(s): June Term, 2019 No. 06650

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 12, 2022

Thomas Jefferson University (“Jefferson”) appeals from a discovery

order requiring it to produce a Title IX investigation report (“the Report”) over 

its claim of attorney-client privilege. We affirm.

Jessica Phillips, a student and medical resident at Jefferson, filed a Title 

IX complaint with Jefferson against John J. Abraham, M.D., a professor at 

Jefferson and an attending physician at a related hospital. Phillips alleged 

Abraham had raped her at a party at his home. Jefferson engaged outside 

counsel to conduct an investigation, and counsel produced the Report.

Abraham initiated the instant lawsuit against Phillips and her husband, 

Reid Phillips (collectively, with Abraham, “Appellees”). Abraham brought

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* Retired Senior Judge assigned to the Superior Court.
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claims of libel, slander, and related torts. The Phillipses filed counterclaims,

including assault and battery. Jefferson is not a party to the lawsuit.

The Phillipses served a subpoena on Jefferson for “[a]ny and all 

documents pertaining to or relating to the Title IX inquiry and/or investigation 

and/or proceedings[.]” Objections and Response to Subpoena Pursuant to 

Rule 4009.21, 2/1/21, at Ex. 1. Jefferson produced some documents in 

response and also served objections. It objected that the subpoena, among 

other things, sought documents protected from disclosure by the attorneyclient privilege. It provided a privilege log identifying the Report and listing it

as protected by attorney-client privilege. See Phillipses’ Motion to Compel 

Discovery Directed to Thomas Jefferson University, Ex. E, at 1. 

Appellees filed a Joint Motion to Compel Discovery, seeking a copy of 

the Report. They asserted the investigation that was the subject of the Report 

“was conducted pursuant to the TJU Title IX Policy,” rather than to secure 

legal services or in anticipation of litigation. Joint Motion to Compel Discovery, 

4/5/22, at ¶ 4. They further argued Jefferson had “not produced any 

documents identifying how or why the law firm [that created the Report] was 

retained or who the alleged client of the law firm may have been.” Id. They 

also contended that the privilege could not apply because the Report was not 

a “communication,” “but rather a report of facts and factual findings.” Id. at 

¶ 16.

Appellees argued that even if the privilege could apply, Jefferson had 

waived it by disclosing the Report to third parties. According to Appellees, Dr. 
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Abraham is an employee of an orthopedic institute, the Rothman Institute. 

Appellees alleged that Jefferson had disclosed the Report to two other 

employees of the Institute—Drs. Alexander Vaccaro and James Purtill. Id. at 

¶ 6. Appellees further claimed that Jefferson had disclosed the 

“determinations” of the Report to the Board of Directors of the Rothman 

Institute. Id.

1

In support, Appellees attached to their motion a copy of a letter to 

Phillips from Jefferson’s Title IX coordinator. The letter stated that Jefferson 

had received notice of the alleged incident, which, “if substantiated, would 

constitute a violation of the University’s Sexual Misconduct Policy,” and that 

“[i]t is determined that an investigation into these allegations will be 

conducted.” Id., Ex. A. The letter asked Phillips to provide the names of 

potential witnesses to the incident and invited her to submit a written 

statement. It also “highly recommended” that Phillips not discuss the incident 

with anyone else, “to allow the investigation to proceed without compromise.”

Id. The Motion stated that Appellees did not oppose the redaction of the 

names of witnesses from the Report “pursuant to any sort of confidentiality 

granted such witnesses.” Joint Motion to Compel at ¶ 8 n.1.

Jefferson argued in opposition that it had “retained outside counsel to 

conduct an investigation and to render legal advice regarding the Title IX 

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1 Appellees also argued that Abraham had filed a separate action against 

Jefferson in federal district court, and that “the Report will no doubt be subject 

to disclosure through the discovery process in that litigation[.]” Joint Motion 

to Compel at ¶ 12.
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complaint.” Memorandum of Law in Opposition to Appellees’ Joint Motion to 

Compel Discovery, 4/19/21, at 2; see also id. at 6 (arguing Jefferson retained 

counsel “to conduct an independent and external investigation into the Title 

IX matter, so as to be able to provide advice to Jefferson relating to the 

incident and claims . . . and assess its compliance with Title IX”). Jefferson

stated counsel had “conducted an extensive investigation, including 

conducting interviews of individuals” and that it had “advised these individuals 

that any information disclosed in connection with the investigation would be 

kept confidential.” Id. at 4. Jefferson argued the Report was therefore 

protected by attorney-client privilege.

Jefferson further argued that it had not waived the privilege by 

disclosing the Report to any third parties. It asserted that Dr. Vaccaro and Dr. 

Purtill were de facto employees of Jefferson and therefore entitled to read the 

communications from Jefferson’s counsel. Id. at 7. Jefferson also averred it 

had never disclosed the Report to the Rothman Institute Board of Directors. 

Id. Abraham filed a supplemental memorandum of law, pointing out that in 

another lawsuit, Jefferson denied having any agency relationship with Dr. 

Vaccaro.

The court granted the Motion in part and denied it in part. It ordered 

Jefferson to produce a copy of the Report, but allowed it to redact any 

“communications subject a claim of attorney-client privilege,” which “may be 

subject to further review by [the c]ourt.” Order, 5/11/21, at 1. In its Rule 

1925(a) opinion, the court explained that it agreed with Appellees’ arguments 
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that the witness interviews conducted by counsel were not privileged as they 

“were simply the factual findings within the report[.]” Trial Court Opinion, 

12/22/21, at 4-5. The court also agreed with Appellees that the Report was 

not “secured for either an opinion of law, legal services or assistance in a legal 

matter” but was “made pursuant to [Jefferson’s] Title IX policy.” Id. at 4.

Jefferson filed a Notice of Appeal. It raises the following issues:

1. Whether the Trial Court erred in granting, in part, [Appellees’]

Joint Motion to Compel Discovery.

2. Whether the Trial Court erred in ordering production of a Title 

IX Investigation Report, which was prepared by counsel for 

Jefferson, where Jefferson hired outside counsel to conduct an 

investigation and prepare a report for purposes of providing legal 

advice as to the Title IX matter.

3. Whether the Trial Court erred in ordering production of the Title 

IX Investigation Report, by failing to determine which specific 

portions of the report were protected from disclosure by the 

attorney-client privilege, or otherwise identifying the specific 

portions Jefferson was ordered to produce in unredacted form.

Jefferson’s Br. at 4 (answers omitted).

We first address the Appellees’ contention that this appeal is from an 

unappealable “routine discovery order,” and not an immediately appealable,

collateral order. See Phillips’ Br. at 9. We must resolve this question first as 

it implicates our jurisdiction. Knopick v. Boyle, 189 A.3d 432, 436 (Pa.Super. 

2018). 

A collateral order is one that is “separable from and collateral to the 

main cause of action where the right involved is too important to be denied 

review and the question presented is such that if review is postponed until 
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final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).

As a rule, orders “overruling claims of privilege and requiring disclosure are 

immediately appealable” as collateral orders. Commonwealth v. Williams, 

86 A.3d 771, 780 (Pa. 2014) (quoting Commonwealth v. Harris, 32 A.3d 

243, 252 (Pa. 2011)). However, when a party contests the appealability of an 

order rejecting an assertion of privilege, the Pennsylvania Supreme Court has 

advised that “it is prudent” to resolve whether the order is truly collateral. Id.

We conclude the order under review is collateral as defined by the Rule. 

First, the issue of whether the Report is privileged is separable from the main 

cause of action because it “can be resolved without an analysis of the merits 

of the underlying dispute.” Id. at 781. The issue of whether the Report is 

privileged does not require any inquiry as to whether Appellees are liable for 

the claims made against them. Indeed, if this issue were dispositive of the 

underlying claims, it is unlikely that Appellees would have joined forces in this 

appeal.

Second, whether the Report is privileged is an issue that is too important 

to be denied immediate review. That is because the interests protected by 

attorney-client privilege “are significant relative to the efficiency interests 

served by the final order rule.” Id. at 782. The Supreme Court has consistently 

“recognize[d] that exercise of a privilege is an important right deeply rooted 

in public policy.” Id. Accordingly, the Supreme Court and this Court have

allowed collateral appeals of other orders requiring the disclosure of 

documents purportedly protected by attorney-client privilege. See, e.g., In 
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re Est. of McAleer, 248 A.3d 416, 425 (Pa. 2021); Ford-Bey v. Prof’l

Anesthesia Servs. of N. Am., LLC, 229 A.3d 984, 988 n.4 (Pa.Super.), 

appeal denied, 242 A.3d 1251 (Pa. 2020).

Third, the claim of attorney-client privilege will be irreparably lost if the 

issue is put off until the case is resolved, as the trial court has ordered 

Jefferson to produce the Report. “Once putatively privileged material is in the 

open, the bell has been rung, and cannot be unrung by a later appeal.” 

Williams, 86 A.3d at 784 (quoting Harris, 32 A.3d at 249) (brackets 

omitted).

As we find the test for a collateral order has been satisfied, we turn to 

the merits of the appeal. Whether a particular document is protected from 

disclosure by attorney-client privilege is a question of law. Newsuan v. 

Republic Servs. Inc., 213 A.3d 279, 284 (Pa.Super. 2019). We therefore 

employ a de novo standard of review. Id. Our scope of review is plenary. Id.

Jefferson argues2the entire Report is legal advice protected from 

disclosure by attorney-client privilege because it was prepared for Jefferson, 

in response to the Title IX complaint, by counsel whom Jefferson had retained 

for that purpose. Jefferson contends that because it has made these 

assertions, it has “set forth sufficient facts showing that the privilege was 

properly invoked,” and the burden shifts to Appellees to prove that Jefferson

has waived its attorney-client privilege. Jefferson’s Reply Br. at 8.

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2 Jefferson does not divide its argument into sections corresponding to the 

questions presented, in contravention of Pa.R.A.P. 2119(a).
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Jefferson also argues the court erred in entering an order allowing it to 

redact the portions of the report subject to attorney-client privilege without 

first identifying the portions of the Report the court believes are privileged.

Jefferson argues it was the court’s duty to “perform an adequate analysis of 

the withheld information and determine whether the withheld information is 

privileged and protected from disclosure.” Jefferson’s Br. at 14.3

Attorney-client privilege is codified by statute as follows. “In a civil 

matter counsel shall not be competent or permitted to testify to confidential 

communications made to him by his client, 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. The purpose of the attorney-client 

privilege is to effectuate sound legal representation fostered by honest and 

frank communication between attorney and client. BouSamra v. Excela 

Health, 210 A.3d 967, 982 (Pa. 2019). However, because application of the 

privilege prevents the factfinder from considering relevant information, the 

privilege is to be construed narrowly, and applies only where necessary to 

achieve its intended purpose. In re Est. of McAleer, 248 A.3d at 426.

Pennsylvania applies a burden-shifting framework to the attorney-client 

privilege analysis. First, “[t]he party invoking the privilege must initially set 

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3 Jefferson also argues that it did not waive privilege by disclosing the Report 

to any third parties. As we determine Jefferson has failed to establish the 

Report is privileged, we need not address waiver.
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forth facts showing that the privilege has been properly invoked.” Knopick, 

189 A.3d at 439. The party must establish four elements:

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

client.

2) The person to whom the communication was made [or the 

person who made the communication] 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 [or providing] either an opinion of law, legal 

services or assistance in a legal matter, and not for the purpose 

of committing a crime or tort.

4) The privilege has been claimed and is not waived by the client.

Ford-Bey, 229 A.3d at 990-91 (citation omitted).

4 Establishing that the 

privilege applies “often entails an affidavit, statement, or testimony clarifying

the circumstances under which the communication was made.” Id. at 991. 

If the party invoking the privilege has set forth sufficient facts to invoke 

the privilege, then the burden shifts to the party seeking disclosure. That party 

may overcome the claim of privilege by “setting 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.” Knopick, 189 

A.3d at 439. Conversely, if the party asserting the privilege fails to carry its 

initial burden to invoke the privilege, “then the burden never shifts to the 

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4 See Knopick, 189 A.3d at 440 (“[I]n Pennsylvania, the attorney-client 

privilege operates in a two-way fashion to protect confidential client-toattorney or attorney-to-client communications made for the purpose of 

obtaining or providing professional legal advice”).
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other party, and the communication is not protected under attorney-client 

privilege.” Id.; see Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 

39 A.3d 372, 379 (Pa.Super. 2012) (holding party had failed to properly 

invoke attorney-client privilege where party had “not presented an affidavit, 

statement, or testimony by [counsel] to clarify whether [counsel] requested 

[party] produce the memoranda at issue or for what purpose [counsel] 

requested [it]”).

In addition, as the privilege applies only to communications made for 

the purpose of providing legal assistance, it will not protect against the 

disclosure of underlying facts or “protect clients from factual investigations.” 

Custom Designs & Mfg. Co., 39 A.3d at 378 (citation omitted); see also 

Gillard v. AIG Ins. Co., 15 A.3d 44, 52 n. 8 (Pa. 2011). A fact is not 

transformed into privileged information “solely by virtue of its having been 

communicated [by] counsel.” Custom Designs & Mfg. Co., 39 A.3d at 378.

We conclude that Jefferson failed to carry its initial burden to invoke the 

privilege to the entire Report. While Jefferson averred the Report was created 

by counsel it retained in response to a Title IX claim, Jefferson did not provide 

an affidavit, a copy of its agreement with counsel, or any other evidence 

explaining the scope or purpose of the Report. The only evidence of record on 

this score is the letter the Phillipses produced stating the Report would be 

generated as a matter of course according to Jefferson’s routine internal Title 

IX policies. See Joint Motion to Compel Discovery at Ex. A. While it is possible 

that Jefferson’s Title IX policies requiring an investigation and report may be 
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intended provide Jefferson with legal advice, it is also possible that the policies 

are intended to provide Jefferson with purely factual information. Jefferson 

failed to sufficiently elaborate on those policies, or specify in what manner the 

Report provides “either an opinion of law, legal services or assistance in a 

legal matter.” Ford-Bey, 229 A.3d at 990-91; see Custom Designs & Mfg. 

Co., 39 A.3d at 379.

Even assuming the Report was created by Jefferson’s counsel in 

anticipation of litigation, Jefferson made no proffer regarding the contents of 

the Report that would lead to a conclusion that the Report is privileged in its 

entirety. We do not have access to the report, and Jefferson’s proffer is all we 

have to go on. The only proffer regarding the contents of the Report has been 

that the Report was created using witness interviews. See Memorandum of 

Law in Opposition to Appellees’ Joint Motion to Compel Discovery at 4. 

Indeed, Jefferson has revealed little about the Report. It did not explain 

whether the Report contains recordings of the interviews, transcriptions of the 

interviews, or counsel’s summarizations or impressions of the interviews. Nor 

did Jefferson assert that any of the interviewees wish to assert attorney-client 

privilege; that is, Jefferson did not assert that any of the interviewees are 

Jefferson employees, have any legal interest in the matter, sought legal advice 

during the interviews, or were led to believe they were confiding in counsel 

acting on their own behalf. Nor did Jefferson explain whether the Report 

contains factual data aside from witness interviews, such as photographs or 

telephone records. Jefferson cannot convert such materials into non-
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discoverable items simply by embedding them within a “communication.”

Custom Designs & Mfg. Co., 39 A.3d at 378.

Ultimately, Jefferson failed to provide sufficient facts for the trial court 

to rule that the Report is privileged in its entirety or that any of the specific 

contents of the Report are privileged. The trial court therefore did not err in 

ordering Jefferson to produce the Report, particularly as the court’s order 

allows Jefferson to redact any potentially privileged portions of the Report and 

to submit them to the court for further review.

Regarding Jefferson’s argument that the court erred in failing to specify

the portions of the Report that might be privileged, we find the argument 

waived. Jefferson never requested the court conduct an in camera review of 

the Report, or offer any explanation of the various contents of the Report, but 

advanced only that the Report was privileged in its entirety. Jefferson cannot 

make this argument for the first time on appeal. See Pa.R.A.P. 302(a).

Moreover, the cases Jefferson cites in support of this point are 

distinguishable. In each case, we remanded because the trial court’s ruling 

covered multiple documents and the trial court had failed to conduct an 

appropriate inquiry into whether attorney-client privilege applied before 

broadly ordering the items discoverable.

5 Here, the trial court was considering 

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5

In Gocial v. Indep. Blue Cross, 827 A.2d 1216, 1223 (Pa.Super. 2003), 

the trial court deemed an entire privilege log discoverable, rather than ruling 

on the relevance of each item or reviewing the privileges applicable to each 

item. We remanded so the trial court could consider each document and 

(Footnote Continued Next Page)
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only one document—the Report—and duly considered the evidence and 

argument presented by Jefferson and Appellees and aptly applied the statute 

and jurisprudence governing the application of attorney-client privilege. 

Jefferson’s assertion the court erred in failing to specify which portions of the 

Report might be privileged—when Jefferson gave the court no reason to 

conclude any portion is privileged—inappropriately shifts the burden of 

proving privilege from Jefferson to the court. 

Finally, the court’s order provides that Jefferson may redact any

material subject to attorney-client privilege and submit it for further review. 

Therefore, there is nothing to prevent Jefferson from submitting the entire 

Report to the court for an in camera review, to assist Jefferson in complying 

with the order. In this regard, Jefferson’s argument that the court has failed 

to adequately specify which portions of the Report are privileged is premature.

Order affirmed.

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observed that “in camera review may be required.” Id. Similarly, in 

Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1127 

(Pa.Super. 2007), the trial court entered a sweeping order granting numerous 

discovery requests without discussing whether privilege applied or considering 

whether the information would lead to the discovery of admissible evidence. 

We remanded for the court to “consider, rule on, and explain its rulings 

regarding each . . . discovery request[.]” Id. We again advised that in camera

review and redaction might be required. Finally, in T.M. v. Elwyn, Inc., 950 

A.2d 1050, 1063 (Pa.Super. 2008), we held the trial court’s orders requiring 

the defendants to disclose all relevant documents were overly broad and 

remanded for a consideration of whether the attorney-client privilege applied 

to any of the documents covered by the orders. As in the other cases, we 

stated the court may conduct in camera review, as needed. Id.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2022