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OOR Holds that a Draft Complaint attached to an Email is Privileged

Christopher L. Voltz, cvoltz@tuckerlaw.com, (412) 594-5508

In Beckes v. North East School District, AP 2022-2826, the OOR determined that the attachments to two emails from the District Solicitor to the District were protected from disclosure under the attorney-client privilege and the attorney work product doctrine. 65 P.S. §67.305(a)(2).

For the attorney-client privilege to apply, an agency must demonstrate that: 1) the asserted holder of the privilege is or sought to become a client; 2) the person to whom the communication was made 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 either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort; and 4) the privilege has been claimed and is not waived by the client. Bousamra v. Excela Health, 210 A.3d 967, 982-83 (Pa. 2019) (citing Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1263-64 (Pa. Super. Ct. 2007), aff’d 992 A.2d 65 (2010)).

The attorney work-product doctrine, on the other hand, prohibits disclosure “of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” Pa.R.C.P. 4003.3. “The purpose of the work product doctrine is to protect the mental impressions and processes of an attorney acting on behalf of a client, regardless of whether the work product was prepared in anticipation of litigation.” Bousamra v. Excela Health, 210 A.3d 967, 976 (Pa. 2019) (internal citations omitted); see also Heavens v. Pa. Dep’t of Env’t Prot., 65 A.3d 1069, 1077 (Pa. Commw. Ct. 2013) (“[U]nder the RTKL the work-product doctrine protects a record from the presumption that the record is accessible by the public if an agency sets forth facts demonstrating that the privilege has been properly invoked”). While the attorney-client privilege is waived by voluntary disclosure, Bousamra, 210 A.3d at 978 (internal citation omitted), the work-product doctrine is not primarily concerned with confidentiality, as it is designed to provide protection against adversarial parties. Id. at 979 (internal citations and quotation omitted).

In this case, the attachments were draft complaint forms, draft complaints, supplemental information to be included within the complaints, and draft correspondence related to a potential claim.  The emails themselves were sent to District representatives and invited the District to review, comment or ask questions about the draft documents.  The District Solicitor confirmed that the attachments were prepared at the request of the District to offer legal options and that these documents differed from the final filed complaint.

The OOR concluded that the attachments to the two emails likely involved mental impressions, suggestions, and strategic alterations made by the District Solicitor. See Pa. Game Comm’n v. Fennell, 149 A.3d 101 (Pa. Commw. Ct. 2016) (holding that the OOR must consider uncontradicted statements in the appeal filing when construing exemptions). As a result, the OOR determined that the attachments to the email communications were protected by the attorney-client privilege and the attorney work product doctrine.

For more information, contact Chris Voltz at cvoltz@tuckerlaw.com, (412) 594-5580.

April 02, 2023

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