Abraham v. Phillips

287 A.3d 848 (Table)

John J. ABRAHAM, M.D.

v.Jessica PHILLIPS and Reid Phillips

Appeal of: Thomas Jefferson University

No. 1050 EDA 2021

Superior Court of Pennsylvania.

Filed October 12, 2022

MEMORANDUM BY McLAUGHLIN, J.:

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 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 attorney-client 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. 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 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 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 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 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....