An issue that comes up when representing companies is whether the outside attorney defending the company also represents the company’s employees. The issue is significant since, in Pennsylvania (unlike other states), if there is not an attorney-client privilege, then the attorney is obligated to produce notes of interviews and written communications with interviewed individuals (unless those notes involve the attorney’s mental impressions).
This is the issue that was raised before Judge Rau of the Court of Common Pleas of Philadelphia County (a/k/a trial court in Philly). In the case, the plaintiff Karen Newsuan was run over by a 46,000 pound front end loader truck that resulted in an above the knee amputation of her right leg. The plaintiff sued Waste Services, the waste management facility, and an attorney was retained to represent Waste Services. In the regular course of discovery, the defense attorney identified 16 employee fact witnesses. He then interviewed them and took their statements. Privileged, right?
“No” said Judge Rau. She held that because the employees never specifically agreed to retain the attorney before their statements were taken, there was no attorney-client relationship and thus no privilege. The Waste Services’ attorney was ordered to produce all of the interview notes and statements.
Because the issue involved is one of privilege, an interlocutory appeal is possible in this case and the matter has gone up on appeal. Where the appellate court ultimately comes down remains to be seen. But, in the meantime, make sure you/your attorneys are careful (and specific) as to whom you/they represent. Merely representing the corporate defendant does not, for the moment, mean that your communications with the employees are also guaranteed to be privileged.