Order Compelling Privileged Information is Immediately Appealable

In Farrell v. Regola, 2016 Pa. Super. 241 (2016), the administrator of the estate of a deceased minor brought a wrongful death suit against a gun manufacturer and a neighbor after the decedent committed suicide with a gun owned by that neighbor. Throughout the course of discovery, plaintiff sought information regarding the gun owner’s wife’s counseling records, handwritten notes taken during the depositions, and information regarding the gun owner’s criminal trial.

When the defendants objected to the discovery requests, the plaintiff filed a motion to compel, which was granted by the trial court. After defendants provided a response objecting on the basis of psychiatrist/patient privilege and attorney client privilege, the plaintiff filed a second motion to compel.  The court directed defendants to produce any and all psychiatric records from mental health visits conducted pursuant to the incident in question, and any and all of defendant’s handwritten notes taken during depositions and during the criminal trial. The court indicated that an in camera review would be performed thereafter.

In addressing the issues on appeal, the Pennsylvania Superior Court determined that the trial court order regarding production of privileged materials was immediately appealable. The Court cited Pa. R.A.P. 313 and Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999) which held that when a trial court refuses to apply a claimed privilege, the decision is appealable.   The Superior Court also determined that the counseling records sought by the plaintiff were privileged and subject to the psychiatric/psychologist relationship as defined under Pa.R.C.P. 4003.1(a). The Court also determined that the attorney-client privilege extended to the handwritten notes that were taken at the depositions and during the criminal trial. The Superior Court noted that the trial court’s order compelling defendant to divulge information that was purportedly privileged was immediately appealable.

Jennifer L. LeVan

Office: Bethlehem
Phone: (610) 954-6873
Email: jlevan@forryullman.com
Practice Areas: Commercial Litigation, First Party PIP / MPC, Fraud / SIU, General Liability, Premises Liability, Third Party, UM/UIM