Metz Lewis Brodman Must O'Keefe

Metz Lewis Brodman Must O'Keefe

Posted on October 5, 2018

On September 20, a full panel of the Superior Court filed an Opinion in Gregury and Robey v. Greguras, et al., 2018 PA Super 261 (Pa.Super., filed Sept. 20, 2018) (en banc), clarifying when a party may waive the attorney-client privilege under Pennsylvania law.

In a question of first impression, the Court held, in part, that the defendants abused the attorney-client privilege by asserting it throughout pre-trial proceedings, only to waive it at the outset of trial much to the surprise and prejudice of the opposing party.

Gregury involved a dispute regarding the disposition of an estate.  The plaintiffs, adult children of the departed’s first marriage, sought recourse for the alleged failure of their legacy, despite supposedly clear language in their father’s will to the contrary.  At issue were communications that the defendant, the father’s second wife, shared with her attorney regarding the disposition of jointly-held property upon his death.  Throughout the course of pretrial litigation and discovery, the defendant invoked the attorney-client privilege to shield those discussions from the plaintiffs.

A jury trial commenced, and during opening statements, the defendant’s counsel insinuated that the defendant remembered the content of her discussions with her attorney and would testify to facts favorable to her defense.  The plaintiffs objected, moved for a mistrial, and sought a continuation to permit limited discovery.  The trial court overruled the objection, denied the mistrial, and ignored the request for a continuation.  Trial proceeded and resulted in favor of the defendants.

On appeal, the Honorable Mary Jane Bowes, writing on behalf of the majority, noted that the clear language of the privilege statute permits waiver of the privilege “upon the trial by the client.” The Court observed, however, that this language must be “viewed in the context of our discovery and pretrial rules.”  Gregury, 2018 PA Super, at *14.  The Court noted that “[o]ne of the primary purposes of discovery is to prevent surprise and unfairness of a trial by ambush, in favor or a trial on the merits.”  Id.

The Court took umbrage with the defendant’s last-minute waiver of the privilege, finding that “one party should not be permitted to withhold information from the other party and then surprise that party with it at trial.”  Id.  at *20.  Further, it found the trial court had various means of mitigating the issue, such as precluding the privileged communications or pausing the proceedings to allow limited discovery.

Gregury stands as a cautionary tale for matters involving privileged communications.   The courts will not countenance last-minute tactical deployments of privileged communications. Practitioners must not be hasty when invoking the privilege during discovery if such communications are essential to their clients’ defense at trial.  Following Gregury, the courts may require notice of a party’s waiver of the privilege well in advance of trial to provide opposing counsel an opportunity to properly explore the evidence.

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