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attorneysubpoenastatuteappealmotiongrand juryattorney-client privilege
attorneygrand juryattorney-client privilege

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In re Thirty-Third Statewide Investigating Grand Jury, 624 Pa. 361, 86 A.3d 204

Facts

The Pennsylvania Turnpike Commission (the 'Commission') was under investigation by the Office of Attorney General (OAG) for potential violations of criminal statutes related to its employment and procurement practices. The Commission produced over 140,000 pages of material in response to subpoenas but sought to protect certain communications with its counsel under attorney-client privilege and work product doctrine. The Commission proposed a privilege log process for the OAG to review potentially privileged documents, which the OAG rejected. The supervising judge denied the Commission's motion for a protective order, leading to the Commission's appeal.

The Commission maintained that it could invoke these privileges because the statutory codifications are unequivocal in their application to all attorneys and all of their clients, and that nothing in the Commonwealth Attorneys Act (the 'CAA'), not even the broad 'books and papers' provision, 71 P.S. § 732–208, eliminates, modifies or otherwise qualifies privileges for Commonwealth agencies.

Issue

Whether the attorney-client privilege and work product doctrine apply to records and communications of Commonwealth agencies in the context of a criminal investigation by the OAG.

The parties have briefed the following merits issues: 1) whether the attorney-client privilege and the work product doctrine apply to records and communications of Commonwealth agencies in the context of a criminal investigation by the OAG; 2) whether the books and papers provision of the CAA, 71 P.S. § 732–208, waives and eliminates the attorney-client privilege and work product doctrine for Commonwealth agencies in a criminal investigation by the OAG; and 3) whether a Commonwealth agency and the OAG are the same 'client' for purposes of invoking the attorney-client privilege and work product doctrine in a criminal investigation by the OAG.

Rule

The attorney-client privilege and work product doctrine do not preclude the production of communications between Commonwealth agencies and their counsel in the context of a grand jury investigation.

The Commission argues that it is entitled to invoke the attorney-client privilege and work product doctrine to protect communications with its in-house and outside counsel.

Analysis

The court analyzed the statutory provisions regarding attorney-client privilege and work product doctrine, concluding that these protections do not apply to communications between the Commission and its counsel in the context of a grand jury investigation. The court emphasized that the OAG's right to access documents under the books and papers provision of the Commonwealth Attorneys Act supersedes these privileges, allowing for the production of the requested materials.

The court analyzed the statutory provisions regarding attorney-client privilege and work product doctrine, concluding that these protections do not apply to communications between the Commission and its counsel in the context of a grand jury investigation.

Conclusion

The Supreme Court affirmed the lower court's order, concluding that the attorney-client privilege and work product doctrine do not shield the Commission's communications from disclosure in the grand jury investigation.

The Supreme Court affirmed the lower court's order, concluding that the attorney-client privilege and work product doctrine do not shield the Commission's communications from disclosure in the grand jury investigation.

Who won?

The Office of Attorney General prevailed in the case, as the court ruled that the Commission's claims of privilege did not prevent the OAG from accessing the requested communications.

The OAG argued that the Commonwealth should indeed have unfettered access to the Commission's communications with counsel, including access to the Commission's computer hard drives and server.

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