Electronic Discovery Law

Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 2008 Pa. Super. 222 (Pa. Super. Ct. 2008)

In this case involving breach of fiduciary duty and related claims, plaintiff had requested the production of certain email and documents maintained on the computers of two individual defendants.  When defendants failed to produce the requested material, plaintiff moved to compel. At the hearing on the motion, defense counsel informed the court that the two computers were inoperable and that technicians were currently working on the computers.  The court pressed defense counsel for an explanation of how the computers were broken, and observed that plaintiff was entitled to the information that had been requested.  When the court asked defense counsel what order it should enter, defense counsel responded:  “We can produce the computers.”  After the court entered its order, defendants appealed.

Defendants argued that production of the computers would waive any attorney-client privilege attached to the documents contained thereon and that the plaintiff had never requested production of the computers themselves, but that the trial court had raised the issue sua sponte.

Plaintiff argued that defendants failed to preserve the issue for appeal and waived their claim of privilege by failing to object to the order at the time it was issued.  Plaintiff noted that defendants had specifically agreed to produce the computers on the record.

The court spent considerable time addressing the issue of counsel’s ability to waive the attorney-client privilege on behalf of a client and determined that such waiver was possible.  It found that defense counsel waived any claim of attorney-client privilege and the objection for appeal when he agreed to the production of the computers on the record.  Accordingly, the court quashed defendants’ appeal.

In an interesting footnote, the court indicated that defendants’ failure to object to a previous order to produce “all email and other documents” contained on the computers was tantamount to defendants’ later agreement, on the record, to produce the computers themselves:

Appellants contend [plaintiff] never demanded production of the computers themselves and that the possibility of such production was raised “sua sponte” by the trial court.  [Citations to the record omitted].  Appellants fail to recognize there is no meaningful distinction between producing “all emails and other documents” from a computer and producing the computer itself. . . . .

2008 WL 4291319, *2 n.1 (citations omitted; emphasis added).