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ALERT: Pennsylvania Superior Court Limits Work Product Privilege for Statements Obtained by Investigators

July 25, 2018

The Pennsylvania Superior Court recently ruled that notes and memoranda of witness interviews conducted by a private investigator, acting at the direction of counsel, is not protected by the Attorney Work Product Privilege, and is therefore discoverable.  In McIlmail v. Archdiocese of Phila., 2018 Pa. Super. LEXIS 620 (June 7, 2018), the Pennsylvania Superior Court affirmed the decision of a trial court holding that notes generated by an independent investigator while taking witness statements were discoverable. 

In issuing this ruling, the court found that Pennsylvania Courts have traditionally set a high bar for invoking the attorney-client and attorney-work-product privileges.  Specifically, the Court noted that the Pennsylvania Rules of Civil Procedure only protect the mental impressions, conclusions, memoranda, notes and legal theories of an attorney or the attorney’s agent.  In regards to representatives of the party, the court noted that the Rules of Civil Procedure only protect mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or strategy and tactics. 

The court held that an independent investigator is not an agent of the attorney, but is merely a representative of the party and, therefore, is afforded privilege only with regards to the impressions, conclusions, or opinions respecting the value or merit of a claim or defense or strategy and tactics.  In reaching this conclusion, the court noted that there is a stark difference between the role of an attorney (and the attorney’s agent) and the role of a representative of the party, like and independent investigator.  The line of distinction is that work performed by an attorney or the attorney’s agent relates to legal analysis performed for a client.  Comparatively, work like memorializing a witness statement in not inherently legal.  Thus, such work is afforded only the limited protection granted to the representative of a party and not that of an attorney. 

Practically, this ruling narrows an attorney’s ability to protect material created by an independent investigator during an investigation.  While this decision impacts the discoverability of work product created by independent investigators, it is not a seismic shift, as the ruling emphasizes the plain language of the Pennsylvania Rules of Civil Procedure.  Rather than creating new rules, this opinion defines the role of an investigator and declares that investigation materials that do not comment on the value or merit of a claim are discoverable. 

As this decision is further litigated in the Pennsylvania Courts, Zarwin Baum will continue to provide updates.  If you have questions about this ruling or it impact on your cases, please contact Ted Schaer ( or Ross Di Bono ( 


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