Carlino East Brandywine, L.P. v. Brandywine Village Associates

Carlino sued, alleging causes of action for breach of contract and other claims. Without moving to compel any specific production request, Carlino filed a motion to compel the defendants to produce all attorney-client privileged and attorney work product documents relating to the subjects of the underlying litigation in response to its first set of production requests. The trial court granted the motion. The Pennsylvania Superior Court reversed. First, the Court ruled that it had jurisdiction because the trial court issued a collateral order when it compelled the defendants to divulge materials claimed to be privileged. Next, the Court was tasked with determining whether the defendants waived the work product protection when they asserted reliance on advice of counsel as a defense in jointly answering Carlino’s amended complaint.  The Court held that counsel’s action in asserting the work product defense did not result in waiver of the privilege. Counsel might have waived work product protection by, for instance, placing work product in issue, or disclosing it in a manner likely to reach adversarial parties. But the record was unclear as to which, if any, communications resulted in waiver of the privilege.

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