Pennsylvania Appellate Court Orders Defendants to Produce Privilege Log
In Meyer-Chatfield Corp. v. Bank Financial Services Group et. al., 2016 Pa. Super. 147 (Pa. Super. Ct., July 14, 2016), the Pennsylvania Superior Court considered a set of consolidated appeals regarding various discovery orders. Plaintiff, the former employer of the individual Defendants, sued Defendants for unfair competition, poaching employees, and stealing proprietary information. The case was fraught with discovery disputes. Among these was a motion to compel filed by Plaintiff, who claimed that Defendants’ responses to discovery requests were inadequate. The trial court granted the motion to compel and required responses “without objection,” and also required certain Defendants to produce all business and personal computers, portable electronic devices, and passwords to all personal and business email accounts, computers, and devices. Defendants appealed the order and also filed a motion for reconsideration. The trial court amended the order to provide procedures for protecting privileged materials. Defendants appealed that order as well.
The court held that it had jurisdiction to decide whether ESI is privileged. Although Defendants did not produce a privilege log, the court did not find that omission to be a fatal error and thus reversed the order compelling production and remanded the case for further proceedings related to the privileged nature of the items sought. The court ordered Defendants to create a privilege log identifying all privileged materials and the basis for the privilege decision. The court further ordered Plaintiff to identify the materials in the privilege log that it wanted produced, and the court may review documents in camera to determine which materials should be produced. The court further ordered that its reversal and remand applied only to documents with a claim of privilege, and otherwise the order remained in full force and effect.