J-S14032-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GENESIS TURF GRASS, INC. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SYNATEK, LP, D/B/A “SYNATEK 

SOLUTIONS, INC.” AND JONATHAN C. 

MACNAMARA,

Appellant No. 1396 MDA 2015

Appeal from the Order Entered July 28, 2015

In the Court of Common Pleas of York County

Civil Division at No(s): 2013-SU-002913-89

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016

Appellant Jonathan McNamara appeals from the order of the Court of 

Common Pleas of York County directing him to produce his attorney’s notes 

and summaries from an interview with witness Randy Ratcliffe. As we agree 

that such documentation is protected from disclosure as attorney work 

product under Pennsylvania Rule of Civil Procedure 4003.3, we reverse the 

trial court’s order in part with further directions contained in this decision.

Genesis Turf Grass, Inc. (“Respondent”) initiated this action against its 

former employee, Appellant and SynaTek L.P., d/b/a SynaTek Solutions, Inc. 

(“SynaTek”), alleging that Appellant breached a non-competition agreement 

when he began working for SynaTek. Appellant responded by filing an 

action alleging that Respondent violated the Pennsylvania Wage and 

Collection Law when it failed to pay Appellant the full amount of commission 
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he was due under the parties’ contract. The two cases were consolidated by 

the trial court.

Upon beginning the discovery phase of trial, the parties scheduled the 

deposition of Randy Ratcliff, who was also a former employee of Respondent 

and a current employee of SynaTek. Respondent argued that Appellant was 

not due any additional commission as he agreed to split his commissions 

with Ratcliff, an allegation which Appellant denies. Appellant’s attorney, M. 

Jason Asbell, Esq., admits that he met with Ratcliff prior to the deposition to 

discuss claims which Ratcliff could potentially bring against Respondent.

At Ratcliff’s June 9, 2015 deposition, Ratcliff initially stated that he had 

not met with anyone prior to giving the deposition. After a break in the 

deposition, Ratcliff clarified that he had spoken to Atty. Asbell before the 

deposition. Atty. Asbell then invoked the attorney-client privilege with 

respect to any conversation he had with Ratcliff.

On July 13, 2015, Respondent filed its “Motion to Compel the 

Testimony of Randy Ratcliff, [Appellant], and the Production of Attorney 

Asbell’s Notes.” Respondent asked the trial court to compel the deposition 

of Ratcliff in regards to his conversations with Atty. Asbell and order the 

production of “any and all notes from [Atty. Asbell’s] meeting with Mr. 

Ratcliff.” Respondent’s Motion to Compel, 7/13/15, at 6. Appellant filed a 

response, arguing that counsel’s conversations with Ratcliff were protected 

by attorney-client privilege and his notes and summaries of his interview of 

Ratcliff were protected under the work product doctrine.
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On July 28, 2015, the trial court heard oral argument on Respondent’s 

motion. In a subsequent order, the trial court granted Respondent’s motion 

to compel Ratcliff’s testimony and ordered the “production of documents 

with respect to the conversation between Attorney Asbell and Mr. Ratcliff.” 

Order, 7/29/15, at 2. The trial court indicated in its order that the attorneyclient privilege did not apply, but did not discuss the applicability of the work 

product doctrine. However, although not memorialized in the trial court’s 

order, the trial court indicated at the hearing that Appellant could redact 

from Attorney Asbell’s notes any of counsel’s mental impressions or legal 

positions. N.T., 7/28/15, at 27-28. Appellant filed a timely notice of appeal 

and complied with the trial court’s directions to file a concise statement of 

errors complained of on appeal pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b).

On appeal, Appellant raises one issue for our review:

Whether [Appellant’s] Counsel should be ordered to produce 

attorney memoranda, notes, and summaries of discussions with 

Mr. Ratcliff to opposing counsel when Pa.R.C.P. 4003.3 and its 

comment explicitly protect such documents from disclosure to 

opposing counsel?

Appellant’s Brief at 3.

Before we reach the merits of Appellant’s argument, it is essential to

determine whether this Court has jurisdiction over this appeal. Pennsylvania 

law provides that an appeal is proper in the following instances:

[a]n appeal may be taken from: (1) a final order or an order 

certified as a final order (Pa.R.A.P. 341); (2) an interlocutory 

order as of right (Pa.R.A.P. 311); (3) an interlocutory order by 
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permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) 

a collateral order (Pa.R.A.P. 313).

Veloric v. Doe, 123 A.3d 781, 784 (Pa.Super. 2015) (citation omitted). 

Appellant claims the trial court’s discovery order is subject to 

immediate appeal as a collateral order pursuant to Rule 313(b). We agree. 

Rule 313(b) defines a collateral order as an order 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 final judgment in the case, the claim will be 

irreparably lost.” Pa.R.A.P. 313(b). While “most discovery orders are 

deemed interlocutory and not immediately appealable because they do not 

dispose of the litigation...[,] certain discovery orders, particularly those 

involving ostensibly privileged material, have been found to be immediately 

appealable as collateral orders pursuant to Pa.R.A.P. 313.” Veloric, 123 

A.3d at 784 (citations omitted). See also Rhodes v. USAA Cas. Ins. Co., 

21 A.3d 1253, 1258 (Pa.Super. 2011) (stating “discovery orders involving 

purportedly privileged material are appealable because if immediate 

appellate review is not granted, the disclosure of documents cannot be 

undone and subsequent appellate review would be rendered moot”). As 

Appellant alleges that the trial court’s discovery order compels the disclosure 

of attorney work product, we find Appellant has appealed a collateral order 

which may be subject to our review.

In reviewing Appellant’s claim that the trial court’s discovery order was 

overly broad, our standard of review is as follows:
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Whether the attorney-client privilege or the work product 

doctrine protects a communication from disclosure is a question 

of law. This Court's standard of review over questions of law is 

de novo, and the scope of review is plenary. Our review of a 

discovery order, as well as a trial court's order imposing 

sanctions, requires the application of an abuse of discretion 

standard. 

Saint Luke's Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540 (Pa.Super. 

2014), appeal denied, 114 A.3d 417 (Pa. 2015).

Appellant limits his claim to challenge the propriety of the trial court’s 

discovery order with respect to the work product doctrine.1 Pennsylvania 

Rule of Civil Procedure 4003.3 codifies the work product doctrine and states 

in relevant part:

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 attorney ... insurer or agent. The 

discovery shall not include disclosure of the mental impressions 

of a party's attorney or his 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 mental 

impressions, conclusions, or opinions respecting the value or 

merit of a claim or defense or respecting strategy or tactics.

Pa.R.C.P. 4003.3. The Comment to Rule 4003.3 provides further 

clarification that is particularly relevant to this case: “[u]nder the Rule, a 

____________________________________________

1 As noted above, the trial court also rejected Appellant’s claim that the 

attorney-client privilege protected such documents from disclosure. As 

Appellant elected not to appeal this specific finding, we need not review this 

claim further.
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lawyer's notes or memoranda of an oral interview of a witness, who signs no 

written statement, are protected.” Comment to Pa.R.C.P. 4003.3. Cf. 

Commonwealth v. Williams, 624 Pa. 405, 428-29, 86 A.3d 771, 785 

(2014) (noting that the Pennsylvania Rules of Criminal Procedure “vest[] 

discretion in the trial court to order pre-trial disclosure of [attorney] notes, 

but significantly, only those notes that are a “substantially verbatim” record 

of a witness's statement; an attorney's imprecise summary, selected 

statements, interpretations, or recollections, are not subject to disclosure 

under the rule”).

This Court has explained that the protection against the discovery of 

work product is designed to “shield the mental processes of an attorney, 

providing a privileged area within which he can analyze and prepare his 

client's case. The doctrine promotes the adversary system by enabling 

attorneys to prepare cases without fear that their work product will be used 

against their clients.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1062 (Pa.Super. 

2008) (citation omitted). The United States Supreme Court established the 

work-product doctrine in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 

91 L.Ed. 451 (1947) to protect the mental impressions, conclusions, notes, 

memoranda, theories and research of an attorney from disclosure to 

opposing counsel during discovery. In near identical factual circumstances, 

the Supreme Court found it was improper for the District Court to order the 

disclosure of the defense attorney’s private documentation and personal 

memoranda of witness interviews taken in preparation of litigation without 
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requiring the plaintiff to establish adequate reasons to justify production, 

emphasizing:

[h]istorically, a lawyer is an officer of the court and is bound to 

work for the advancement of justice while faithfully protecting 

the rightful interests of his clients. In performing his various 

duties, however, it is essential that a lawyer work with a certain 

degree of privacy, free from unnecessary intrusion by opposing 

parties and their counsel. Proper preparation of a client's case 

demands that he assemble information, sift what he considers to 

be the relevant from the irrelevant facts, prepare his legal 

theories and plan his strategy without undue and needless 

interference. That is the historical and the necessary way in 

which lawyers act within the framework of our system of 

jurisprudence to promote justice and to protect their clients' 

interests. This work is reflected, of course, in interviews, 

statements, memoranda, correspondence, briefs, mental 

impressions, personal beliefs, and countless other tangible and 

intangible ways — aptly though roughly termed by the Circuit 

Court of Appeals in this case (153 F.2d 212, 223) as the ‘Work 

product of the lawyer.’ Were such materials open to opposing 

counsel on mere demand, much of what is now put down in 

writing would remain unwritten. An attorney's thoughts, 

heretofore inviolate, would not be his own. Inefficiency,

unfairness and sharp practices would inevitably develop in the 

giving of legal advice and in the preparation of cases for trial. 

The effect on the legal profession would be demoralizing. And 

the interests of the clients and the cause of justice would be 

poorly served.

Id. at 510-11, 67 S. Ct. at 93-94, 91 L. Ed. 451.

In the instant case, the trial court ordered Appellant to produce the 

“documents with respect to the conversation between Attorney Asbell and 

Mr. Ratcliff.” Order, 7/28/15, at 2. While the order stated that the 

attorney-client privilege did not prevent disclosure of this information, the 

trial court’s order fails to address the fact that protected work product 

material may be at issue. Although the trial court order suggested on the 
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record at the hearing on Respondent’s motion to compel that Appellant could 

redact from Attorney Asbell’s notes any of counsel’s mental impressions or 

legal positions, the trial court fails to recognize that counsel’s notes may not 

contain any discoverable material such as verbatim statements made by 

Ratcliff, but simply be counsel’s personal recollection and summary of the 

interview. 

In reviewing such a discovery request, the party invoking the 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 [] privilege, e.g., because 

the privilege has been waived or because some exception applies.” T.M., 

950 A.2d at 1063. Accordingly, upon remand, the trial court may conduct in 

camera review of the documents sought in discovery to assess whether they 

contain discoverable material. As a result, we vacate the trial court’s July 

28, 2015 order in part with respect to its direction that documents related to 

Attorney Asbell’s conversation with Ratcliff be produced without limitation.
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Order vacated. Case remanded with instructions. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016