J-A12043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CLAUDE DE BOTTON, NEWTOWN               IN THE SUPERIOR COURT OF
SQUARE EAST, L.P., NATIONAL                   PENNSYLVANIA
DEVELOPERS, INC. AND NEWTOWN G.P.,
LLC



                  v.

MARC B. KAPLIN, ESQUIRE, BARBARA
ANISKO, ESQUIRE AND PAMELA M.
TOBIN, ESQUIRE, KAPLIN STEWART
MELOFF REITER & STEIN, P.C., BPG
REAL ESTATE INVESTORS - STRAW PA.,
CAMPUS INVESTORS OFFICE B, L.P.,
CAMPUS INVESTORS 25, L.P., CAMPUS
INVESTORS I BUILDING, L.P., CAMPUS
INVESTORS H BUILDING, L.P., CAMPUS
INVESTORS D BUILDING, L.P., CAMPUS
INVESTORS COTTAGES, L.P., CAMPUS
INVESTORS OFFICE 2B, L.P., ELLIS
PRESERVE OWNERS ASSOCIATION,
KELLY PRESERVE OWNERS
ASSOCIATION, COTTAGES AT ELLIS
OWNERS ASSOCIATION,
GENBAR/MANAGEMENT CAMPUS, LLC,
BERWIND PROPERTY GROUP, LTD.,
EXECUTIVE BENEFIT PARTNERSHIP
CAMPUS, MANAGEMENT PARTNERSHIP
BENEFIT, L.P. AND ELLIS ACQUISITION,
L.P.

APPEAL OF: KAPLIN STEWART MELOFF
REITER & STEIN, P.C., MARC B. KAPLIN,
ESQUIRE, BARBARA ANISKO, ESQUIRE
AND PAMELA M. TOBIN, ESQUIRE

                                           No. 1270 EDA 2015


            Appeal from the Order Entered April 2, 2015
       In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): 101001997
===============================================
J-A12043-16


CLAUDE DE BOTTON, NEWTOWN              IN THE SUPERIOR COURT OF
SQUARE EAST, L.P., NATIONAL                  PENNSYLVANIA
DEVELOPERS, INC. AND NEWTOWN G.P.,
LLC



                 v.

MARC B. KAPLIN, ESQUIRE, BARBARA
ANISKO, ESQUIRE AND PAMELA M.
TOBIN, ESQUIRE, KAPLIN STEWART
MELOFF REITER & STEIN, P.C., BPG
REAL ESTATE INVESTORS - STRAW PA.,
CAMPUS INVESTORS OFFICE B, L.P.,
CAMPUS INVESTORS 25, L.P., CAMPUS
INVESTORS I BUILDING, L.P., CAMPUS
INVESTORS H BUILDING, L.P., CAMPUS
INVESTORS D BUILDING, L.P., CAMPUS
INVESTORS COTTAGES, L.P., CAMPUS
INVESTORS OFFICE 2B, L.P., ELLIS
PRESERVE OWNERS ASSOCIATION,
KELLY PRESERVE OWNERS
ASSOCIATION, COTTAGES AT ELLIS
OWNERS ASSOCIATION,
GENBAR/MANAGEMENT CAMPUS, LLC,
BERWIND PROPERTY GROUP, LTD.,
EXECUTIVE BENEFIT PARTNERSHIP
CAMPUS, MANAGEMENT PARTNERSHIP
BENEFIT, L.P. AND ELLIS ACQUISITION,
L.P.

APPEAL OF: BPG REAL ESTATE
INVESTORS - STRAW PA., CAMPUS
INVESTORS OFFICE B, L.P., CAMPUS
INVESTORS 25, L.P., CAMPUS
INVESTORS I BUILDING, L.P., CAMPUS
INVESTORS H BUILDING, L.P., CAMPUS
INVESTORS D BUILDING, L.P., CAMPUS
INVESTORS COTTAGES, L.P., CAMPUS
INVESTORS OFFICE 2B, L.P., ELLIS
PRESERVE OWNERS ASSOCIATION,
KELLY PRESERVE OWNERS
ASSOCIATION, COTTAGES AT ELLIS
OWNERS ASSOCIATION,
                                 -2-
J-A12043-16


GENBAR/MANAGEMENT CAMPUS, LLC,
BERWIND PROPERTY GROUP, LTD.,
EXECUTIVE BENEFIT PARTNERSHIP
CAMPUS, MANAGEMENT PARTNERSHIP
BENEFIT, L.P. AND ELLIS ACQUISITION,
L.P.

                                                      No. 1301 EDA 2015


                   Appeal from the Order Entered April 2, 2015
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 101001997

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 03, 2017

        Appellants, Kaplin Stewart Meloff & Stein, P.C., Marc B. Kaplin,

Esquire, Barbara Anisko, Esquire, Pamela M. Tobin, Esquire (collectively

“Kaplin”), BPG Real Estate Investors-Straw Pa., and others listed in the

caption (collectively, excluding Kaplin, “BPG”) appeal from the order entered

in the Court of Common Pleas of Philadelphia County on April 2, 2015. On

remand from this Court’s memorandum decision of February 11, 2014, the

trial court directed Kaplin and BPG, for the second time, to produce certain

privileged communications to Appellees Claude de Botton, Newtown Square

East, L.P., National Developers, Inc., and Newtown G.P., LLC (collectively




____________________________________________


*
    Former Justice specially assigned to the Superior Court.



                                           -3-
J-A12043-16


“de Botton”).1      After careful review, we vacate and remand for further

proceedings.

        A prior panel of this Court detailed the lengthy factual and procedural

histories of this matter; as such, we will not repeat them here and instead

incorporate them by reference. See De Botton v. Kaplin Stewart Reiter

& Stein, P.C., Nos. 1635 EDA 2012 & 1734 EDA 2012, unpublished

memorandum at 1-12 (Pa. Super. filed Feb. 11, 2014).
____________________________________________


1
    Pennsylvania law provides that:

        An appeal may be taken from: (1) a final order or an order
        certified as a final order (Pa.R.A.P. 341); (2) an interlocutory
        order as of right (Pa.R.A.P. 311); (3) an interlocutory order by
        permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4)
        a collateral order (Pa.R.A.P. 313).

Veloric v. Doe, 123 A.3d 781, 784 (Pa. Super. 2015) (citation omitted).

       Rule 313(b) defines a collateral order as an order that is “separable
from and collateral to the main cause of action where the right involved is
too important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.” Pa.R.A.P. 313(b).      While “most discovery orders are
deemed interlocutory and not immediately appealable because they do not
dispose of the litigation...[,] certain discovery orders, particularly those
involving ostensibly privileged material, have been found to be immediately
appealable as collateral orders pursuant to Pa.R.A.P. 313.” Veloric, 123
A.3d at 784 (citations omitted); see also Rhodes v. USAA Cas. Ins. Co.,
21 A.3d 1253, 1258 (Pa. Super. 2011) (citation omitted) (stating that
“discovery orders involving purportedly privileged material are appealable
because if immediate appellate review is not granted, the disclosure of
documents cannot be undone and subsequent appellate review would be
rendered moot”). Here, the April 2, 2015 order compels the disclosure of
privileged information and, thus, it is appealable and subject to this Court’s
review under the collateral order doctrine. See Commonwealth v. Harris,
32 A.3d 243, 249 (Pa. 2011).



                                           -4-
J-A12043-16


        2014 WL 10981626, at *1-6 (Pa. Super. Feb. 11, 2014) (unpublished

memorandum).         For the purposes of this appeal, we will briefly detail the

relevant factual and procedural history as follows.

        In April 2009, BPG brought federal antitrust claims and related state

law claims against de Botton.           The federal court dismissed the antitrust

claims, but declined to exert supplemental jurisdiction over the state law

claims and, therefore, the remaining claims were remanded to the Delaware

County Court of Common Pleas where they remain pending. On October 15,

2010, despite the ongoing proceedings in Delaware County, de Botton filed a

complaint against Kaplin and BPG in the Philadelphia County Court of

Common Pleas, alleging statutory wrongful use of civil proceedings 2 and

common law abuse of process.            Specifically, de Botton alleged that Kaplin

and BPG filed federal antitrust claims against de Botton without probable

cause and for an improper purpose.

        On April 13, 2011, de Botton served interrogatories and requests for

production of documents on Kaplin and BPG.              Kaplin and BPG objected,

claiming that such items were not discoverable under the attorney-client

privilege and/or work product doctrine. Thereafter, the parties prepared a

“Stipulated Non-Waiver and Clawback Agreement” (hereinafter “clawback

agreement”), and on October 26, 2011, the trial court approved the
____________________________________________


2
    See Dragonetti Act, 42 Pa.C.S. §§ 8351-55.



                                           -5-
J-A12043-16


agreement.3 In accordance with the clawback agreement, Kaplin produced

290 pages of documents along with a privilege log detailing withheld

documents.

       Unsatisfied with the produced documents, on February 7, 2012, de

Botton filed a motion to compel discovery and for an in camera review of the

redacted and withheld information.             In response, Kaplin and BPG filed a

motion to stay the proceedings, or in the alternative, sought protection

under the attorney-client privilege and/or the work product doctrine.            The

trial court denied Kaplin and BPG’s motion to stay on March 21, 2012, and

ordered the production of the un-redacted communications for an in camera

review. On May 22, 2012, the trial court found the disputed communications

to be relevant, and therefore discoverable, and ordered BPG and Kaplin to

produce certain documents within ten days.             See Trial Court Findings and

Order, 5/22/12, at 9-10. Kaplin and BPG timely appealed.

       On appeal, this Court observed that although the trial court compelled

the production of 30 documents, it erred as a matter of law by failing to

discuss specifically the attorney-client privilege or work product doctrine, as

they may relate to the documents.              Instead, the trial court relied upon a

broad and generalized rationale that the documents were discoverable
____________________________________________


3
  A clawback agreement permits the production of documents without an
intent to waive privilege and requires the return of mistakenly produced
documents. See Fed.R.Civ.P. 26, Comment (2006 Amendment, Subdivision
(f)).


                                           -6-
J-A12043-16


because they were “relevant.” We further commented that the trial court’s

analysis lacked a discussion of the applicability, if any, of the parties’

clawback agreement.     See De Botton, Nos. 1635 EDA 2012 & 1734 EDA

2012, unpublished memorandum at 22. Ultimately, we determined that the

trial court’s omission prevented us from addressing BPG and Kaplin’s issues

and from ascertaining whether the trial court had properly compelled the

production of the disputed documents.        Therefore, we vacated the trial

court’s May 22, 2012 order and remanded “to have the trial court apply the

factors for disclosing or not disclosing the documents at issue, particularly in

the context of the claims raised in this case, … and a court-approved

clawback agreement.” Id. (internal citations omitted).

      Following remand, the trial court issued its findings and entered an

order on April 2, 2015.      At the outset, the trial court noted that the

communications in question were protected by both the attorney-client

privilege and the work product doctrine, neither of which had been waived

by Appellants. However, the trial court also concluded that the documents

were relevant because they served as a basis for the federal anti-trust

complaint. Based upon the trial court’s understanding of the holding in St.

Luke’s Hospital of Bethlehem v. Vivian, 99 A.3d 534 (Pa. Super. 2014),

Pa.R.C.P. 4003.3, and Pa.R.C.P. 4003.1(b), the trial court discussed the

admissibility of the thirty reference documents as follows:

      Documents 1 and 2


                                     -7-
J-A12043-16


     The withheld communications reference the identity and
     propriety of parties which the BPG defendants were thinking
     about adding to provide the necessary parties to create the
     multiple parties so that their claim for Civil Conspiracy could be
     made out.

     Documents 8-21

     These are a series of connected e-mails which begin with a
     discussion of de Botton’s Motion to Dismiss the original
     Complaint in apparent preparation to filing an Amended
     Complaint as an answer thereto. One part of these emails is the
     discussion of the legal issues which made the Complaint subject
     to attack and BPG’s planned response. The central piece of
     these emails is a continuing discussion of the Opinions of a non-
     testifying expert BPG retained who raised three principle
     criticisms of the theory of liability outlined in BPG’s Complaint.
     The expert is represented as having opined that there was a
     “significant hurdle” presented to the success of the BPG
     Complaint by certain established federal doctrines.           The
     continuing discussion also focused on certain components of the
     forthcoming civil conspiracy count which will become part of
     BPG’s soon to be filed Amended Complaint.

     Document 23

     In this document, the changes to be implemented in the
     Amended Complaint to address the issues raised in the de
     Botton Motion to Dismiss. Also discussed are the non-testifying
     expert’s recommendations to answer the legal defects pointed
     out in the Motion to Dismiss as well as adding certain factual
     allegations to establish a defense to certain federal doctrine
     issues which work against BPG’s claims.

     Documents 24 and 27

     This document … falls under the Subject line “Re: Possible other
     Co-conspirators.” It discusses adding a claim ancillary to their
     abuse of process claim and the inability to currently identify the
     ownership of defendant entities which inform the conspiracy
     claim or distinguish between parties so as to form a conspiracy
     claim.

     Document 30

     Discusses ways to defeat certain First Amendment protections
     that might be available to de Botton. Further discusses ways to

                                   -8-
J-A12043-16


     support BPG’s theory of a conspiracy by de Botton et al, to injure
     BPG.

     Document 33

     Raises issues concerning amendments to subsequent Amended
     Complaints and the naming of parties or the lack of such naming
     of parties as an impediment to the success of the “Anti-trust
     claims.”

     Document 36 (and 46)

     These are identified as duplicates and appear to have no
     identified redacted sections. They are fully producible.

     Document 38

     This is a discussion of factors under consideration by BPG in their
     attempts to establish a relevant geographic market which was
     the fatal flaw in its Anti-Trust Complaint.

     Document 39

     Lengthy email discussing a draft of the Amended Complaint
     outlining the factors involved in establishing the requisite
     relevant geographic market aspect of the Federal Anti-Trust
     Complaint.

     Document 48

     Discussion of the decision to add other entities to the First
     Amended Complaint which is related to the congregation of
     multiple parties for purposes of proving a civil conspiracy. A
     further discussion on the advisability of adding a claim of “false
     statement” as an element of limiting or compromising certain
     statements immunized under the First Amendment speech
     protection and federal doctrine consistent therewith.

     Document 49 and 54

     Duplicate of 48 discoverable for the same reasons.

     Document 53 and 60

     Discussion of adding parties to the Amended Complaint.

     Document 57

     This is a working draft of the Amended Complaint. There were
     no parts of this document identified as redacted.
                                    -9-
J-A12043-16


      Document 59

      Discussion concerning relevant geographic market. (No redacted
      statements identified).

      Document 61

      Discussion of additional parties and “false statement” essentially
      the same as Document 48 above.

      Document 62

      Similar to other documents discussing the advisability of adding
      parties to the Amended Complaint.

      Document 82

      Third paragraph of email is tips on writing, neither relevant,
      interesting nor producible – could eliminate from order. Fourth
      paragraph, a comment on tackling a certain federal doctrine.
      [I]n hindsight, it is neither relevant, interesting nor producible.

      Document 83

      On further review, not producible for the same reasons as
      Document 82.

      Document 88

      Not provided to the Court. Cannot review.

            In review, the above identified communication should be
      produced because they are relevant as to whether the BPG
      Federal Complaint was brought without probable cause and in
      bad faith for the purpose of retaliating against de Botton. The
      attorney-client privilege should afford no shield for these
      statements.

           Considering the above and the Record as a whole, all of
      the documents ordered to be produced per the Order of
      5/22/2012 (referenced herein) except for document 82, 83 are
      again ordered to be produced in un[-]redacted form within
      twenty (20) days of the date of this Order.

Trial Court Findings and Order, 4/2/15, at 9-12 (footnote omitted).

      Again, Kaplin and BPG filed timely notices of appeal. Kaplin raises the

following issues for our review:
                                    - 10 -
J-A12043-16


       1. On remand, did the trial court renew its error by ordering the
       production of attorney-client privileged communications on the
       basis that the communications were “relevant” in disregard of
       this Court’s prior decision upholding the privilege?

       2. On remand, did the trial court renew its error by ordering the
       production of attorney work product on the basis that the work
       product was “relevant” in disregard of this Court’s prior decision
       upholding work product immunity?

       3. Should this case be stayed and assigned to a different trial
       court given the trial court’s persistent refusal to enforce
       attorney-client privilege and work product immunity and the
       waste of judicial resources that this appeal has engendered
       particularly while the underlying matter in this Dragonetti action
       remains pending in the Delaware County Court of Common
       Pleas?

Kaplin’s Brief at 4.

       BPG raises the following issues for our review:

       1.     Did the trial court err in its Order of April 1, 2015,[4] by
       directing [Kaplin] to produce documents protected by the
       attorney-client privilege that exists between Kaplin [] and BPG?

       2.     Where there has been no argument or finding that the
       attorney-client privilege was waived by BPG (whether by
       asserting the advice of counsel defense or otherwise) with
       respect to its privileged communications with Kaplin [], did the
       trial court err in its [April 2, 2015 Order], by directing Kaplin []
       to produce documents protected by the attorney-client privilege
       that exists between Kaplin [] and BPG?

       3.     Where there has been no argument or finding that a
       recognized exception to the attorney-client privilege applies, did
       the trial court err in its [April 2, 2015 Order], by directing Kaplin
       [] to produce documents protected by the attorney-client
       privilege that exists between Kaplin [] and BPG?
____________________________________________


4
 While the Order is dated April 1, 2015, it was entered on April 2, 2015, and
will be referred to herein as the “April 2, 2015 Order.”


                                          - 11 -
J-A12043-16


      4.     Did the trial court err in its [April 2, 2015 Order], by
      directing Kaplin [] to produce documents protected by the
      attorney-client privilege that exists between Kaplin [] and BPG
      based on St. Luke’s Hospital of Bethlehem v. Vivian, 99 A.3d
      534 (Pa. Super. 2014) and the comments to Pennsylvania Rule
      of Civil Procedure 4003.3, where St. Luke’s and the comments
      to Rule 4003.3 address exceptions to the protections afforded by
      Rule 4003.3 and do not address exceptions to the attorney-client
      privilege?

      5.     Did the trial court err in its [April 2, 2015 Order], by
      directing Kaplin [] to produce documents protected by the
      attorney-client privilege that exists between Kaplin [] and BPG
      based on Pennsylvania Rule of Civil Procedure 4003.1, where
      Rule 4003.1 does not permit a court to compel a party to
      produce attorney-client privileged communications merely
      because those communications appear to be reasonably
      calculated to lead to the discovery of admissible evidence?

      6.    Where the parties entered into a Stipulated Non-Waiver
      Agreement and Order, which was signed by the trial court on
      October 26, 2011, and where that Agreement and Order
      expressly provides that the parties have not waived the
      attorney-client privilege, did the trial court err in its [April 2,
      2015 Order], by directing Kaplin [] to produce documents
      protected by the attorney-client privilege that exists between
      Kaplin [] and BPG?

BPG’s Brief at 4-6 (footnote omitted).

      Kaplin’s first and second issues, and all of BPG’s issues, challenge the

trial court’s finding that the disputed documents were discoverable. Kaplin

contends that because the trial court determined that both the work product

doctrine and attorney-client privilege apply to the disputed documents, it

was error for the trial court to order production simply because the

documents were “relevant.”      BPG echoes Kaplin’s argument, maintaining

that the trial court erred because it found that these privileges were not

waived and there is no exception permitting the court to circumvent the
                                - 12 -
J-A12043-16


privilege. Additionally, BPG argues that the trial court erred in applying the

comments to Rule 4003.3 to documents protected by the attorney-client

privilege, as Rule 4003.3 is applicable only to the work product doctrine.

Finally, BPG argues that the trial court erred by failing to follow its own non-

waiver order enforcing the parties’ clawback agreement.                 Once again, we

find that Kaplin and BPG are entitled to relief.

        Our    standard   of    review      for   discovery   orders    is      well-settled.

“Generally, on review of an order concerning discovery, an appellate court

applies an abuse of discretion standard.”                 Berkeyheiser v. A-Plus

Investigations, Inc., 936 A.2d 1117, 1124 (Pa. Super. 2007) (citations

omitted). To the extent that the challenge to the discovery order involves a

question of law, our scope of review is plenary.                See id.        “Whether the

attorney-client     privilege   or    the     work    product    doctrine       protects   a

communication from disclosure is a question of law.”               In re Thirty-Third

Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014)

(citations omitted).

        The attorney-client privilege provides that, “[i]n a civil matter counsel

shall    not   be   competent        or     permitted   to    testify     to    confidential

communications made to him by his client, nor shall the client be compelled

to disclose the same, unless in either case this privilege is waived upon the

trial by the client.” 42 Pa.C.S. § 5928. The attorney-client privilege exists

to “foster a confidence between attorney and client that will lead to a

trusting and open dialogue.”         Gocial v. Independence Blue Cross, 827
                                        - 13 -
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A.2d 1216, 1222 (Pa. Super. 2003). However, “the privilege applies only to

confidential communications made by the client to the attorney in connection

with providing legal services.” Id. (citations omitted).

      As we stated in our previous decision in de Botton:

         A two-part inquiry has been used to resolve disputes over
         disclosure of communication for which attorney-client
         privilege has been asserted. The first part of the inquiry is
         whether attorney-client privilege does indeed apply to a
         particular communication. If the court holds that the
         privilege does apply, then the court must engage in the
         second part of the inquiry; whether an exception or waiver
         applies, thereby overcoming the privilege and permitting
         disclosure.

      [National Mut. Inc. Co. v. Fleming, 924 A.2d 1259,] 1265-66
      [(Pa. Super. 2007)] (citation omitted).  The inquiry entails
      shifting the burdens of proof:

         The party who has asserted attorney-client privilege must
         initially set forth facts showing that the privilege has been
         properly invoked; then the burden shifts to the party
         seeking disclosure to set forth facts showing that
         disclosure will not violate the attorney-client privilege,
         e.g., because the privilege had been waived or because
         some exception applies.

      Id. at 1266 (citation omitted). The Fleming Court conducted a
      comprehensive, detailed review of the document in question in
      resolving whether privilege attached. Id. at 1269. The trial
      court should also review the documents at issue, “rule on the
      relevance of each [document] or explain why the privileges
      raised were inapplicable.” Gocial…, 827 A.2d … [at] 1223 []
      (remanding to have trial court “issue a ruling with respect to
      each document actually sought”).

De Botton, Nos. 1635 EDA 2012 & 1734 EDA 2012, unpublished

memorandum at 15.

      The work product doctrine is codified in Pennsylvania Rule of Civil

Procedure 4003.3 and provides, in relevant part, as follows:
                                    - 14 -
J-A12043-16


      [D]iscovery shall not include disclosure of the mental
      impressions of a party’s attorney or his or her conclusions,
      opinions, memoranda, notes or summaries, legal research or
      legal theories. With respect to the representative of a party
      other than the party’s attorney, discovery shall not include
      disclosure of his or her mental impressions, conclusions or
      opinions respecting the value or merit of a claim or defense or
      respecting strategy or tactics.

Pa.R.C.P. 4003.3.   The purpose of this Rule is to “immunize the lawyer’s

mental impressions, conclusions, opinions, memoranda, notes, summaries,

legal research and legal theories, nothing more.”           Id., Explanatory

Comment. However, we note that while the attorney-client privilege and the

work product doctrine “overlap, they are not coterminous.” Gillard v. AIG

Ins. Co., 15 A.3d 52, 59 (Pa. 2011).

      Specifically, we have recognized that the work product doctrine is not

absolute.

      There are, however, situations under the Rule where the legal
      opinion of an attorney becomes a relevant issue in an action; for
      example, an action for malicious prosecution or abuse of process
      where the defense is based on a good faith reliance on a legal
      opinion as counsel. The opinion becomes a relevant piece of
      evidence for the defendant, upon which defendant will rely. The
      opinion, even though it may have been sought in anticipation of
      possible future litigation, is not protected against discovery. A
      defendant may not base his defense upon an opinion of counsel
      and at the same time claim that it is immune from pre-trial
      disclosure to the plaintiff.

Id.

      Instantly, we note that the trial court patently failed to comply with

our directive upon initial remand.     As stated supra, we directed the trial

court to: (1) determine whether the documents at issue were protected by


                                     - 15 -
J-A12043-16


attorney-client privilege or the work product doctrine; and (2) discuss the

applicability of the parties’ clawback agreement. See De Botton, Nos. 1635

EDA 2012 & 1734 EDA 2012, unpublished memorandum at 23. While the

trial court determined that the documents at issue were protected by both

the attorney-client privilege and the work product doctrine, it failed to come

to this conclusion by specifying why each document was subject to these

privileges.5 Without individualized explanations as to why each document is

protected by either the attorney-client privilege, work product doctrine, or

both, we are unable to determine whether the trial court properly ordered

disclosure of these documents.             See Fleming, 924 A.2d at 1268-69.

Further, the trial court failed to even address the issue of the parties’

clawback agreement.

       Accordingly, we are constrained to vacate the order and remand to

have the trial court: (1) apply the test set forth in Fleming to each

document at issue to determine whether each document is subject to the

protections of the attorney-client privilege; and (2) apply the directives of

Rule 4003.3 to determine whether each document is properly protected by

the work product doctrine.         Additionally, once the trial court determines if
____________________________________________


5
   We recognize that the trial court rendered individualized rulings with
respect to each document; however, these rulings were made with respect
to the relevancy of each document to de Botton’s case, not the applicability
of the attorney-client privilege or the work product doctrine. Thus, the trial
court’s individualized rulings did little to help our analysis of the applicability
of these privileges.


                                          - 16 -
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either, or both, of the privileges apply to each specific document, we direct

the trial court to determine the effect of the parties’ clawback agreement on

the documents at issue, as well as the effect of any exception to either the

attorney-client privilege or the work product doctrine on each protected

document.

     Lastly, in Kaplin’s final issue on appeal, Kaplin asks for a stay of this

matter while the Delaware County action remains pending. There is some

question as to whether this Court has jurisdiction to order a stay in the

Philadelphia County Court of Common Pleas under the current procedural

posture of this case.   However, in light of the fact that we are remanding

this matter to the trial court, we need not reach a conclusion regarding

jurisdiction to issue a stay at this time. Nevertheless, we point out that, in

the interests of judicial economy and to avoid piecemeal litigation, it seems

it would be most prudent to stay this action until completion of the case in

the Delaware County Court of Common Pleas. See Betts Indus., Inc. v.

Heelan, 33 A.3d 1262, 1268 (Pa. Super. 2011) (citing PNC Bank v.

Bluestream, 14 A.3d 831, 843-44 (Pa. Super. 2010) (ordering the stay of

one proceeding in the interests of judicial economy)). Absent a stay, it is

apparent that the various disputes between these parties will only continue

to consume significant judicial resources.    Moreover, it is likely that the

issues raised in the present matter will be decided in the pending Delaware

County action.


                                    - 17 -
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     Order vacated.    Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.


     Judge Panella joins this memorandum.

     President Judge Emeritus Stevens files a concurring memorandum in

which Judge Panella joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2017




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