Judges Opinions, — June 6, 2019 11:36 — 0 Comments

Nedjie Charles, v. Stephanie L. Zidik, v. Jean R. Charles and Jean J. Charles NO. 2016 – 01698

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

NEDJIE CHARLES,                                       :           NO. 2016-01698

Plaintiff                                 :

:

  1. :

:

STEPHANIE L. ZIDIK                                   :

Defendant                            :

:

  1. :

:

JEAN R. CHARLES AND JEAN J.                :

CHARLES                                                       :

Additional Defendants      :

 

ORDER OF COURT

 

AND NOW, this 23rd day of October, 2018, upon consideration of Defendant’s Motion for Protective Order, Plaintiff’s response thereto, and the Briefs submitted by Plaintiff and Defendant, and after Oral Argument and in camera inspection of the documents submitted to the Court pursuant to this Motion, it is hereby Ordered that said Motion is GRANTED.  Defendant’s Responses to Plaintiff’s Request for Production of Documents labeled as Document Numbers 908 through 912, and the information contained therein, are hereby deemed PRIVILEGED AND CONFIDENTIAL, and may not be used, relied upon, or disseminated for any purpose, including, but not limited to, use in settlement negotiations, admission at arbitration or trial, or any other purpose.  Plaintiff’s counsel is directed to return the original document provided in the discovery response to Defense counsel and to destroy any copies thereof within ten days of this Order.

BY THE COURT:

 

                                                                        __________________________, P.J.

                                                                        JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Adam T. Wolfe, Esquire/Shollenberger, Januzzi & Wolfe, LLP/2225

          Millennium Way/Enola, PA  17025

       Joshua Bovender, Esquire/Thomas, Thomas and Hafer, LLP/P. O. Box

          999/Harrisburg, PA  17108

       Lee Albright, Esquire/Law Offices of Joseph R. D’Annunzio/4309 Linglestown

          Road, Suite 211/Harrisburg, PA  17112

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

NEDJIE CHARLES,                                       :           NO. 2016-01698

Plaintiff                                 :

:

  1. :

:

STEPHANIE L. ZIDIK                                   :

Defendant                            :

:

  1. :

:

JEAN R. CHARLES AND JEAN J.                :

CHARLES                                                       :

Additional Defendants      :

 

APPEARANCES:

 

ADAM T. WOLFE, ESQUIRE                     FOR NEDJIE CHARLES

SHOLLENBERGER, JANUZZI

  & WOLFE LLP

 

JOSHUA J. BOVENDER, ESQUIRE          FOR STEPHANIE L. ZIDIK

THOMAS, THOMAS & HAFER LLP

 

LEE ALBRIGHT, ESQUIRE                          FOR JEAN R. CHARLES

LAW OFFICES OF JOSEPH J.                       AND JEAN J. CHARLES

  D’ANNUNZIO

 

OPINION, TYLWALK, P.J., OCTOBER 23, 2018.

 

Plaintiff Nedjie Charles was a passenger in a vehicle driven by Additional Defendant Jean Charles which was involved in a two-vehicle collision with an automobile operated by Defendant Stephanie L. Zidik on January 3, 2015.  Plaintiff’s Complaint, which was filed on May 4, 2017, alleges that the accident occurred due to Zidik’s negligence and that Nedjie Charles sustained severe injuries as a result of the collision.  Zidik denies liability for the accident.  This lawsuit was commenced by Praecipe for Writ of Summons on November 10, 2016.

During discovery, in response to Plaintiff’s Request for Production of Documents, Defense counsel produced a four-page document, entitled “Liability Navigator Common Law Assessment,” which was labeled as Document Numbers 908 through 912.  This document was prepared by Defendant’s insurance representative[1] and contains an evaluation of Plaintiff’s damages and an assessment of liability.

Plaintiff’s counsel indicated that when reviewing Defendant’s discovery response, he realized that this document was probably not subject to discovery and had likely been produced inadvertently by Defendant’s counsel.  After seeing the first two pages, he did not review the remainder of the document and immediately notified Defendant’s counsel of its inclusion in the response.  Plaintiff’s counsel assured Defendant’s counsel that he had no present intention to use the documents for any purpose, and that if he did decide to use it in the future, he would give Defendant’s counsel twenty days’ notice of the proposed use.

Defendant then filed this Motion for a Protective Order pursuant to Pa.R.C.P. No. 4003.3:

Rule 4003.3. Scope of Discovery. Trial Preparation Material Generally

Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery 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. No. 4003.3.

 

Defendant requests the Court to order that the document and the information contained therein cannot be used for any purpose, including as “fodder” for settlement negotiations, and prohibiting its admission or reference at arbitration or trial.  In Plaintiff’s Response to the Motion, Plaintiff’s counsel argues that Defendant made no showing that the document was made in preparation for trial, arguing that it appeared that the document was prepared prior to the preparation and filing of Plaintiff’s Complaint.  Plaintiff further argues that Defendant failed to show that the information contained therein constituted an opinion, conclusion or mental impression as to the value of Plaintiff’s claim.  Lastly, Plaintiff argues that memoranda or notes of a party’s representative are not protected by the provisions of Rule 4003.3 and suggests that there may be potentially relevant and/or admissible information on the second and third pages of the document.

We heard Oral Argument on the Motion on October 5, 2018.  At that time, the parties agreed that we should conduct an in camera inspection regarding the potential relevance and admissibility of the document and/or any portions thereof.  We have been provided with a copy of the document and have conducted the in camera inspection.

The plain language of Rule 4003.3 states that work product applies to a party’s attorney and other representative or agent.   Estate of Paterno v. National Collegiate Athletic Association (NCAA), 168 A.3d 187 (Pa. Super. 2017).  Concerning representatives other than the party’s attorney, the Rule protects only “representative’s disclosure of his mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.” Id. at 199-200, citing Pa.R.C.P. No. 4003.3.  We believe the information contained in this document falls within the protected category.  The document contains assessments of general damages, medical expenses, and wage loss as well as an estimated value of the case and includes comments which are pertinent to these conclusions.  Thus, this information constitutes the “mental impressions, conclusion or opinions respecting the value or merit of a claim” of Defendant’s representative, the insurer.

With regard to Plaintiff’s argument that this document was prepared prior to the filing of the Complaint and not in preparation for trial:

.           Rule 4003.3 permits discovery of work product, so long as the work product does not reflect or include “mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” Pa.R.C.P. No. 4003.3. Work product that does not reflect or include these items is discoverable “even though” prepared in anticipation of litigation. Id. Thus, the Rule does not limit work product protection to materials prepared in anticipation. Rather, materials prepared in anticipation are not automatically protected. Nowhere does the Rule limit its protection of “mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories” to materials prepared in anticipation.

 

Estate of Paterno v. NCAA, 168 A.3d at 200.

 

Regardless, we do believe that this document was prepared in anticipation of the litigation/trial of this matter.  The document reveals an assessment date of February 23, 2017, well after the inception of this litigation and only a few months prior to the filing of the Complaint.  By that time, Defendant would have surely been aware of the nature of Plaintiff’s claims against her and would have determined whether those claims would be contested.  The document reveals that various information regarding Plaintiff’s injuries, medical treatment, and wage loss had already been revealed to Defendant.  Our inspection reveals that this document was undoubtedly prepared by Defendant’s insurer based on the assertion of Plaintiff’s claims and in anticipation of the disputed proceedings going forward, possibly culminating in trial.

We conclude that this information is not relevant or admissible in this proceeding and we will enter an Order granting Defendant’s Motion for a Protective Order.

 

 

 

[1] The first page of this document lists an “Assessment Date” of “23-Feb-2017 at 9:17 a.m.”

 

 

 

 

 

 

 

 

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