Attorney-Client Privilege Must be Used Defensively, Not Offensively
Civil Litigation Update, a publication of the Pennsylvania Bar Association
By: Erin K. Aronson, Esq.
A party may not assert attorney-client privilege during the discovery phase of a proceeding, and subsequently waive the privilege while testifying at trial. In Gregury v. Greguras, 196 A.3d 619 (Pa. Super. 2018) (Opinion by Bowes, J.), the Pennsylvania Superior Court considered, as a matter of first impression, the effect of a last-minute reversal regarding privilege. The defendant invoked attorney-client privilege throughout discovery, and then summarily reversed course at trial and testified regarding communications with counsel in a self-serving manner.
Plaintiffs sought a mistrial, which the trial court denied. On appeal, a divided en banc panel of the Pennsylvania Superior Court vacated and reversed the trial court decision, granting a
new trial. The Pennsylvania Supreme Court recently denied a Petition for Allowance of Appeal in Gregury v. Greguras, 2019 WL 1449167 (Slip Copy April 2, 2019), thereby affirming the en banc decision of the Pennsylvania Superior Court.
The court focused on issues of fundamental fairness and declared that a party cannot invoke privilege “to shield confidential communications from disclosure during the discovery process, only to voluntarily waive the privilege at trial and introduce those communication for [one’s] own purposes.” The court stressed that discovery is intended to “prevent the surprise and unfairness of a trial by ambush,” and cited Pennsylvania courts’ “dim view” of attempts to manipulate privilege. Finally, the court held that even if 42 Pa.C.S. § 5928, which codifies the privilege, allows waiver at trial, that interpretation does not control. Rather, “the timing of the waiver must be viewed in the context of . . . discovery and pretrial rules” and considered in relation to the concepts of prejudice and unfair surprise.
The Pennsylvania Supreme Court’s refusal to consider the appeal in this matter confirms that litigants must use caution to ensure that the attorney client privilege is used as a shield rather than a sword.