Huber, J. v. Noonan, S. ( 2018 )


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  • J-A10007-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    JAMI L. HUBER, ESQUIRE                  :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    Appellee             :
    :
    v.                         :
    :
    SUSAN M. NOONAN, ESQUIRE                :
    :
    Appellant            :        No. 3706 EDA 2017
    Appeal from the Order Dated October 13, 2017
    In the Court of Common Pleas of Lehigh County
    Civil Division at No(s): 2017-0830
    BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.
    MEMORANDUM BY GANTMAN, P.J.:                     FILED OCTOBER 23, 2018
    Appellant, Susan M. Noonan, Esquire, appeals from the order entered in
    the Lehigh County Court of Common Pleas, which granted in part and denied
    in part her motion to quash subpoena/motion for a protective order regarding
    the subpoena of Appellee, Jami L. Huber, Esquire, to produce documents of
    Appellant’s former client, relevant to estate litigation pending in Florida. We
    affirm.
    The pertinent facts and procedural history of this case are as follows.
    Appellant is a Pennsylvania attorney. On January 24, 1995, Appellant assisted
    Clara Anna Claitor (“Decedent”) with the preparation of estate-planning
    documents, including a trust. Decedent was a Pennsylvania resident at that
    time. On May 5, 2015, Decedent sent Appellant a termination letter, stating
    she no longer wanted Appellant’s law firm to represent her. Shortly after,
    ________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-A10007-18
    Decedent relocated to Florida to live with her great-niece, Karen Nannette
    Woods. On June 15, 2015, while living in Florida and with the assistance of a
    Florida attorney, Decedent revised her estate plan, including the trust.
    Significantly, Ms. Woods is the sole beneficiary under Decedent’s revised trust.
    Decedent died in Florida on April 11, 2016.
    On November 23, 2016, Decedent’s relatives, William R. Irey, Dianne L.
    McDonald, Susanne Buff, and Steven Irey, filed a complaint in the probate
    division of Osceola County, Florida, against Ms. Woods, individually and as
    beneficiary of the revised trust, and the co-trustees, asserting claims of
    Decedent’s lack of testamentary capacity, undue influence, and tortious
    interference, in an effort to set aside the revised trust.1 The plaintiffs claimed
    they    were   beneficiaries   under   Decedent’s   Pennsylvania   testamentary
    documents which Appellant had drafted. Appellee represents the plaintiffs in
    the Florida litigation.
    On March 21, 2017, Appellee filed a subpoena in the Lehigh County
    Court of Common Pleas, for the production of Appellant’s entire estate file on
    Decedent. Specifically, the subpoena sought:
    Documents to be Produced:
    1. [Appellant’s] entire file for [Decedent], including but not
    limited to copies of all estate planning documents contained
    therein, including Wills, Trusts, deeds, powers of attorney,
    advance directives, notes, memorandum, transcripts,
    correspondence, deeds, e-mails, texts, billing records,
    pictures and/or audio and video tape recordings.
    1   See McDonald v. Woods, No. 16CP771TR (Fla. 9th Cir. Ct. Nov. 23, 2016).
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    2. Any and all documents relating to any communications
    between [Appellant] (or [Appellant’s] firm) and [Decedent].
    3. Any and all documents relating to any communications
    between [Appellant] (or [Appellant’s] firm) or [Decedent]
    and any and all of [Decedent’s] doctors, attorneys, care
    givers, health care providers, friends, and/or acquaintances,
    including Defendants.
    4. Any and all documents relating to any communications
    between [Appellant] (or [Appellant’s] firm) or [Decedent]
    and any and all of [Decedent’s] banks and brokerage firm.
    5. Any and all documents relating to any communications
    between [Appellant] (or [Appellant’s] firm) or [Decedent]
    and/or any other family member of [Decedent].
    6. All documents, including all communication, records or
    correspondence, in [Appellant’s] file or which may have
    been exchanged with any other individual concerning
    [Decedent], individually or as trustee of any trust, or any
    other individual(s) acting [on] [Decedent’s] behalf.
    7. Any and all documents concerning preparation, execution
    or validity of any testamentary instruments or testamentary
    substitutes for or concerning [Decedent].
    8. Any and all documents concerning any office policies or
    procedures for preparation, execution and/or storage of
    testamentary documents or substitutes concerning
    [Decedent].
    (Appellee’s Subpoena for Production of Documents, filed March 21, 2017, at
    10; R.R. at 19a). The subpoena was served on Appellant on April 18, 2017.
    On May 8, 2017, Appellant filed a motion to quash subpoena/motion for
    protective order, claiming, inter alia, the documents sought are protected by
    the attorney/client privilege and/or work product doctrine.    The trial court
    granted Appellant’s motion on June 19, 2017, based on Appellee’s failure to
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    respond in a timely manner. On June 23, 2017, Appellee filed a motion for
    reconsideration and leave to file an answer nunc pro tunc. On July 10, 2017,
    the court granted reconsideration, vacated its June 19, 2017 order, and
    scheduled a hearing.
    The court held oral argument on September 6, 2017. The court framed
    the issue as whether an attorney who prepared estate planning documents for
    a client can be compelled to turn over her client’s file during a will contest
    after the client’s death. The parties initially discussed whether Pennsylvania
    or Florida law applied to the issue under a choice of law analysis. Appellant
    claimed, inter alia, Pennsylvania law applies because the communications
    between Appellant and Decedent occurred in Pennsylvania while Appellant and
    Decedent were living in Pennsylvania, and Appellant drafted the relevant
    estate   planning   documents    in   Pennsylvania.     Appellant   maintained
    Pennsylvania’s attorney/client privilege protects the communications at issue
    and prohibits her from turning over her former client’s file. Appellant claimed
    the subpoena also sought notes, correspondence, and other memoranda in
    relation to her representation of Decedent, which are protected by
    Pennsylvania’s work product doctrine.
    Appellee argued, inter alia, Florida law should control the outcome of
    this dispute because Decedent died in Florida, Decedent’s estate was probated
    in Florida, litigation concerning Decedent’s estate is pending in Florida, and
    the situs of the assets at issue is in Florida. Appellee explained the documents
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    sought are discoverable under Florida law because Florida has a “testamentary
    exception” to the attorney/client privilege.
    On October 13, 2017, the trial court granted Appellant’s motion to quash
    subpoena/motion for a protective order in part, concerning any portion of the
    subpoena requesting “opinion work product”; the court denied Appellant’s
    motion in all other respects.    Appellant timely filed a notice of appeal on
    November 10, 2017. On December 8, 2017, the trial court ordered Appellant
    to file a concise statement of errors complained of on appeal pursuant to
    Pa.R.A.P. 1925(b); Appellant timely complied on December 13, 2017.
    Appellant raises three issues for our review:
    WHETHER THE TRIAL COURT FAILED TO PROPERLY FOLLOW
    PENNSYLVANIA LAW GOVERNING THE CHOICE OF LAW
    ANALYSIS IN DISPUTES INVOLVING CLAIMS OF PRIVILEGE,
    WHERE PENNSYLVANIA LAW REQUIRES A COURT TO APPLY
    THE LAW OF THE STATE WITH THE GREATER PUBLIC
    POLICY INTEREST IN PROTECTING THE COMMUNICATIONS
    AT ISSUE, RATHER THAN THE GREATER INTEREST IN THE
    LITIGATION AS A WHOLE?
    WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT
    FLORIDA LAW APPLIED TO THE ISSUE OF WHETHER THE
    CONTENTS OF [APPELLANT’S] ESTATE PLANNING FILE, FOR
    HER FORMER CLIENT [DECEDENT], WAS PROTECTED FROM
    DISCLOSURE BY THE ATTORNEY-CLIENT PRIVILEGE, AS
    PENNSYLVANIA IS THE STATE WITH THE GREATER POLICY
    INTEREST IN APPLYING ITS ATTORNEY-CLIENT PRIVILEGE
    LAW?
    WHETHER THE TRIAL COURT ERRED BY ORDERING
    [APPELLANT] TO PRODUCE THE ESTATE PLANNING FILE
    FOR HER FORMER CLIENT, [DECEDENT], AS SUCH IS
    PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, AND
    THERE IS NO TESTAMENTARY EXCEPTION TO THE
    PRIVILEGE UNDER PENNSYLVANIA LAW?
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    (Appellant’s Brief at 4).2
    Preliminarily: “[T]he appealability of an order directly implicates the
    jurisdiction of the court asked to review the order.” Knopick v. Boyle, 
    189 A.3d 432
    , 436 (Pa.Super. 2018) (internal citation omitted). “Accordingly, this
    Court has the power to inquire at any time, sua sponte, whether an order is
    appealable.”   
    Id.
       “If the discovery order requires the appealing party to
    produce materials which the appealing party has asserted are privileged,
    [Pa.R.A.P.] 313 applies, and we accept jurisdiction.” 
    Id. at 437
    . See also
    Pa.R.A.P. 313 (defining collateral order); Estate of Paterno v. National
    Collegiate Athletic Association (NCAA), 
    168 A.3d 187
     (Pa.Super. 2017)
    (explaining general rule that discovery orders compelling disclosure of
    potentially confidential and privileged materials are immediately appealable
    as collateral to principal action); Berkeyheiser v. A–Plus Investigations,
    Inc., 
    936 A.2d 1117
    , 1126 (Pa.Super. 2007) (recognizing that appellant’s
    “colorable claim” of attorney/client privilege and work product doctrine can
    2 In a footnote of her brief, Appellant mentions the court’s application of
    Florida law to the work product doctrine and refers to that portion of the
    court’s order directing Appellant to produce “fact work product.” Appellant,
    however, did not specify that claim in her Rule 1925(b) statement, so any
    issue of what constitutes “fact” work product is waived for purposes of this
    appeal. See Greater Erie Indus. Development Corp. v. Presque Isle
    Downs, Inc., 
    88 A.3d 222
     (Pa.Super. 2014) (en banc) (holding failure to
    comply with Rule 1925(b) order in civil cases constitutes automatic waiver of
    issues raised on appeal); Lineberger v. Wyeth, 
    894 A.2d 141
     (Pa.Super.
    2006) (explaining appellant’s failure to include or specify issue in Rule 1925(b)
    statement waives that issue for purposes of appellate review).
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    establish propriety of immediate appellate review).
    Instantly, Appellant presents a colorable claim of privilege concerning
    the documents requested in Appellee’s subpoena, to satisfy the collateral
    order doctrine. Thus, our jurisdiction is proper; and we can reach the merits
    of Appellant’s issues.       See Pa.R.A.P. 313; Knopick, supra; Estate of
    Paterno, supra; Berkeyheiser, 
    supra.
    For purposes of disposition, we combine Appellant’s issues. Appellant
    argues there is a “true conflict” between Pennsylvania and Florida law
    concerning application of the attorney/client privilege to this discovery dispute
    because Florida has a statutory broad testamentary exception to the
    attorney/client privilege whereas Pennsylvania does not. Appellant asserts
    the trial court misdirected the choice of law analysis, because it determined
    Florida had the greater policy interest in the underlying estate litigation,
    instead of focusing on which state had the greater interest concerning the
    limited issue of attorney/client privilege. Appellant asserts Florida’s interest
    in the particular matter at hand (attorney/client privilege) is minimal and
    exceedingly attenuated.        Appellant stresses that Pennsylvania’s strong
    interest   in   protecting   attorney/client    communications     made    between
    Pennsylvania     attorneys    and   their      Pennsylvania   clients   within   this
    Commonwealth requires application of Pennsylvania law. Appellant highlights
    that Pennsylvania is: the state where the subpoena was served and all
    discovery efforts are directed against Appellant; the situs of the entire
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    attorney/client relationship in question, between Appellant and Decedent; and
    where all communications between Appellant and Decedent took place.
    Appellant concludes Pennsylvania law applies to this discovery dispute, the
    requested documents are protected under the Pennsylvania attorney/client
    privilege, and this Court must reverse the portion of the court’s order denying
    her motion to quash subpoena/motion for a protective order. We disagree.
    “Whether    [the]   attorney-client   privilege   protects   a   particular
    communication is a question of law. Our standard of review is de novo and
    our scope of review is plenary.” Estate of Paterno, supra at 194 (internal
    citations omitted). In conducting a choice of law analysis, the first step “is to
    determine whether a conflict exists between the laws of the competing states.”
    Budtel Associates, LP v. Continental Cas. Co., 
    915 A.2d 640
    , 643
    (Pa.Super. 2006). If the laws of the competing jurisdictions do not conflict,
    then further analysis is unnecessary, and we apply Pennsylvania law. 
    Id. at 643-45
    .   “[A conflict] exists if there are relevant differences between the
    laws.” McDonald v. Whitewater Challengers, Inc., 
    116 A.3d 99
    , 106 (Pa.
    Super. 2015), appeal denied, 
    634 Pa. 749
    , 
    130 A.3d 1291
     (2015). If the laws
    of the competing states do conflict, however, then the second step is to
    analyze the governmental interests underlying each of the conflicting laws.
    Griffith v. United Air Lines, Inc., 
    416 Pa. 1
    , 
    203 A.2d 796
     (1964).3 “The
    3 In Griffith, our Supreme Court abandoned the earlier “place of the injury”
    rule, providing that the laws of the state in which the injury or incident
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    merit of such a rule is that it gives to the place having the most interest in the
    problem paramount control over the legal issues arising out of a particular
    context and thereby allows the forum to apply the policy of the jurisdiction
    most intimately concerned with the outcome of the particular litigation.” Id.
    at 22, 203 A.2d at 806 (internal citation and quotation marks omitted). This
    choice-of-law framework applies in discovery disputes implicating claims of
    privilege and in estate cases. See Carbis Walker, LLP v. Hill, Barth and
    King, LLC, 
    930 A.2d 573
    , 578 (Pa.Super. 2007); In re Agostini’s Estate,
    
    457 A.2d 861
    , 871 (Pa.Super. 1983).
    In conducting the interest analysis, the court must decide which state
    has the most significant relationship or contacts with the issue before the
    court. Budtel, 
    supra at 643
    . This analysis does not involve simply counting
    the number of contacts each state has with the matter at hand. Cipolla v.
    Shaposka, 
    439 Pa. 563
    , 566, 
    267 A.2d 854
    , 856 (1970).             Rather, “[t]he
    weight of a particular state’s contacts must be measured on a qualitative
    rather than quantitative scale.” 
    Id.
     “[T]his means we must determine which
    state…has demonstrated, by reason of its policies and their connection and
    relevance to the matter in dispute, a priority of interest in the application of
    its rule of law.” In re Agostini’s Estate, 
    supra at 871
    .
    Pennsylvania law defines the attorney/client privilege by statute:
    § 5928.          Confidential       communications           to
    occurred governed the dispute, in favor of a more flexible approach. See id.
    at 21, 203 A.2d at 805.
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    attorney
    In a civil matter counsel shall not be competent or
    permitted to testify to confidential communications made to
    [her] by [her] 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.A. § 5928. The purpose of the attorney/client privilege is to “foster
    a confidence between attorney and client that will lead to a trusting and open
    dialogue.”    Gocial v. Independence Blue Cross, 
    827 A.2d 1216
    , 1222
    (Pa.Super. 2003). “While the attorney-client privilege is statutorily mandated,
    it has a number of requirements that must be satisfied in order to trigger its
    protections. First and foremost is the rule that the privilege applies only to
    confidential communications made by the client to the attorney in connection
    with providing legal services.” 
    Id.
     In some instances, in camera review may
    be required to decide whether documents requested in discovery are protected
    by the attorney/client privilege. 
    Id. at 1223
    .
    Florida law codifies its attorney/client privilege, in pertinent part, as
    follows:
    90.502. Lawyer-client privilege
    (1) For purposes of this section:
    *     *      *
    (c) A communication between lawyer and client is
    “confidential” if it is not intended to be disclosed to third
    persons other than:
    1.   Those to whom disclosure is in furtherance of the
    rendition of legal services to the client.
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    2.   Those reasonably necessary for the transmission of
    the communication.
    (2) A client has a privilege to refuse to disclose, and to
    prevent any other person from disclosing, the contents of
    confidential communications when such other person
    learned of the communications because they were made in
    the rendition of legal services to the client.
    *     *      *
    (4) There is no lawyer-client privilege under this section
    when:
    *     *      *
    (b) A communication is relevant to an issue between
    parties who claim through the same deceased client.
    F.S.A. § 90.502(1)(c), (2), (4)(b).        The explanatory note to Section
    90.502(4)(b) provides, in relevant part:
    Subsection (4)      This subsection codifies several well-
    established exceptions to the privilege:
    *     *      *
    (b) When multiple parties claim through the same
    decedent, as in a will contest or a challenge to testate or
    intestate succession, each party claims to best represent the
    interests of the deceased. To allow any or all parties to
    invoke the lawyer-client privilege prevents the swift
    resolution of the conflict and frustrates the public policy of
    expeditiously distributing estates in accordance with the
    testator’s wishes. …
    F.S.A. § 90.502(4)(b), Note. See also Caputo v. Nouskhajian, 
    871 So.2d 266
     (Fla. 5th DCA 2004), appeal denied, ___ Fla. ___, 
    884 So.2d 23
     (2004)
    (explaining Section 90.502(4)(b) permits discovery of communications
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    otherwise protected by attorney/client privilege when multiple opposing
    parties claim through same deceased client).
    Instantly, the trial court conducted a choice of law analysis to decide
    whether     Pennsylvania     or   Florida   law    governed    application      of   the
    attorney/client privilege to this discovery dispute in the Florida estate case, as
    follows:
    A. WHETHER FLORIDA LAW OR PENNSYLVANIA LAW
    IS CONTROLLING?
    This matter has been brought in a Pennsylvania court.
    Therefore, Pennsylvania choice of laws analysis provides the
    framework to decide whether Pennsylvania or Florida law
    applies. …
    First, the court must determine whether there is an actual
    conflict between the potentially applicable laws. Here, an
    actual conflict exists between the laws of Pennsylvania and
    Florida as it relates to this discovery issue. Florida has a
    statute and ample supporting case law that recognize a
    broad testamentary exception to the attorney-client
    privilege. Pennsylvania, on the other hand, has no statutory
    authority that provides a testamentary exception to the
    attorney-client privilege. Further, there is no Pennsylvania
    appellate authority addressing the issue. A handful of
    Pennsylvania Court of Common Pleas decisions have
    discussed a limited testamentary exception, but these
    decisions have been much more limited than the broad
    Florida rule, which eliminates all of the attorney-client
    protections in a trust dispute. Based on the above analysis,
    it appears that there are significant differences between the
    laws of Pennsylvania and Florida regarding this discovery
    issue.
    The second step of the inquiry is that, if a true conflict exists,
    courts must conduct an “interest analysis” to determine
    which state has the greater interest in the outcome of the
    dispute. In making this determination, the court must
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    identify the relevant contacts that each state has with the
    instant dispute.
    Here, it appears that Florida is the state with the largest
    interest in the outcome of the underlying litigation. Florida
    is where the underlying litigation is pending; Florida is
    where the Defendants in that litigation reside; Florida is the
    situs of the trusts at issue in the underlying litigation; and
    the Circuit Court in and for Osceola County, Florida probate
    division is where the ultimate outcome of the underlying
    case will be decided.
    Pennsylvania’s interest involves promoting confidential
    communications between a Pennsylvania client and a
    Pennsylvania attorney made for the purpose of obtaining
    legal advice in Pennsylvania concerning Pennsylvania law.
    On balance, we find that Florida is the state most intimately
    concerned with the outcome of the case. Accordingly,
    Florida law must control the disposition of the issue of
    whether [Appellant’s] files can be withheld on the basis of
    privilege.
    B. WHETHER [APPELLANT] MUST PRODUCE HER FULL
    AND COMPLETE ESTATE PLANNING FILE FOR
    DECEDENT TO [APPELLEE]?
    Florida has a statute that recognizes a broad testamentary
    exception to the attorney-client privilege. See F.S. §
    90.502(4)(b). … To allow any or all parties to invoke the
    lawyer-client privilege prevents the swift resolution of the
    conflict and frustrates the public policy of expeditiously
    distributing estates in accordance with the testator’s wishes.
    The overriding concern that a testator’s intent is effectuated
    and the estate is administered in accordance therewith
    supersedes the confidentiality otherwise afforded. Florida
    law presumes that the testator would wish to have…her
    intent known if the alternative might result in a wrongful
    disposition of [her] estate.
    The issues in this case include a claim for undue influence
    as to the last known testamentary documents purportedly
    executed by Decedent, after Decedent was moved to Florida
    by her great-niece. In order to establish standing to contest
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    the current will offered for probate, the plaintiffs have
    alleged that the prior estate planning documents drafted by
    [Appellant] provide that they are beneficiaries thereunder
    and pursuant to the doctrine of dependent relevant
    revocation, if the current estate planning documents were
    set aside based on undue influence or other reason, the
    prior documents would be revived as the law abhors
    intestacy. While [the] Plaintiffs seek the prior documents to
    establish their standing to contest Decedent’s last known
    Will and Trust, they also seek to have the testimony and file
    of [Appellant] to show Decedent’s longstanding intent to
    provide for them. The [P]laintiffs in the Florida litigation
    also believe that [Appellant’s] file will prove the factors
    which establish undue influence, such as the Defendant’s
    actions in cloistering [Decedent] from those she trusted.
    We find that [Appellant’s] estate planning file for Decedent
    must be provided to [Appellee] with some limitations. …
    (Opinion in Support of Order Granting in part and Denying in part Appellant’s
    Motion to Quash Subpoena/Motion for a Protective Order, filed 10/13/17, at
    4-7; R.R. at 215a-218a) (most internal citations omitted).
    We agree a conflict exists between Florida and Pennsylvania law on this
    privilege and approve of the trial court’s choice of law analysis. The primary
    action is the estate case pending in Florida. Pennsylvania is not the forum
    state for that litigation, and Florida has the principal interest in its resolution.
    On the other hand, Pennsylvania has no interest in the outcome of the Florida
    case and is involved due only to a subpoena derivative of the Florida case.
    Thus, we cannot allow Pennsylvania indirectly to control the Florida estate
    litigation and defer to Florida law, which has seen fit to adapt to the particular
    circumstances at issue, by way of its testamentary exception to the
    attorney/client privilege.
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    Consequently, under these circumstances, we conclude Florida is the
    state with more significant contacts and greater concern for the primary and
    principal litigation, so Florida law should also control the matter of attorney-
    client privilege.   See Griffith, 
    supra;
     Carbis Walker, 
    supra.
            Therefore,
    Appellant’s claims merit no relief. Accordingly, we affirm.
    Order affirmed.
    Judge Ransom did not participate in the consideration or decision of this
    case.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/23/18
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