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Don’t Discover Too Late That Your Investigator’s Notes and Statements May Be Discoverable

November 5, 2018

Simply because an individual is hired in anticipation of litigation does not lead to a blanket protection of all materials drafted by that individual. This is a common misconception. There is a large gap in the protection for materials drafted by an attorney versus a representative for a party. This was made even clearer by a recent ruling stemming from the ongoing litigation arising out of the alleged abuse within the Archdiocese of Philadelphia.

Specifically, the Pennsylvania Superior Court held that an investigator’s notes of interviews were discoverable and not protected by attorney work-product privilege despite the investigator being hired at the behest of an attorney.  In McIlmail v. Archdiocese of Philadelphia, 2018 PA Super 157, 2018 WL 2731404 (Pa. Super. June 7, 2018), the Court was presented with this issue after the Archdiocese of Philadelphia was compelled by the Philadelphia trial court to produce notes taken by its investigator of possible witnesses. The Archdiocese appealed this discovery order to the Superior Court.  

The Court upheld the trial court’s discovery order and expressly held that that conferring attorney work-product protection to the investigator’s notes of the interviews would impermissibly expand Rule 4003.3.  In doing so, the Superior Court rejected the objecting party’s argument that the investigator was an “attorney’s representative” and therefore that individual’s work is privileged.

The Superior Court was presented with this issue after the Archdiocese of Philadelphia was compelled by the trial court to produce notes taken by its investigator of witnesses. The Archdiocese appealed this discovery order to the Superior Court.   The Court noted that Pa.R.C.P. 4003.3, in the explanatory comment, divides protected work-product into two categories: attorney work product and non-attorney work product:

  • The attorney work product privilege protects the disclosure of mental impressions, conclusions, opinions, memoranda, notes legal research or legal theories
  • The non-attorney work product privilege is much narrower involves “any other representative of a party” and protects disclosure of that individual’s “mental impressions, conclusions or opinions respecting value or merit of a claim or defense or respecting strategy”. That comment went on to expressly reject the idea that memoranda or notes are protected as a general rule.

The Archdiocese attempted to place its investigator’s memoranda and notes into the broader attorney protections by classifying the investigator as an “agent of the attorney” and the Court rejected that categorization.

Going forward, this ruling clearly incentivizes insureds to involve an attorney as early as possible to collect witness statements or for an investigator to work closely with an attorney in speaking with witnesses but the investigator not drafting any notes or memoranda concerning the statements made by these witnesses. As we recommend to all of our clients, we recommend retaining our firm immediately upon learning of an incident involving serious injury or allegations of wrongdoing.  Otherwise, simply doing an internal investigation or hiring a third-party to accumulate statements may hamstring your defense counsel later when those documents are subpoenaed and cannot be objected to due to this recent Superior Court holding.

If you would like a copy of this opinion and/or would like to discuss what Zarwin Baum can offer in terms of emergency response or pre-suit investigation, please feel free to e-mail Greg Mallon at gmallon@zarwin.com.


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