Verdetto et al v. State Farm Fire & Casualty Company

Filing 17

MEMORANDUM ORDER denying 11 Motion for Disclosure of Communications between State Farm and Its Counsel. Signed by Honorable A. Richard Caputo on 4/19/11 (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL VERDETTO and DEBORAH
VERDETTO
CIVIL ACTION NO. 3:10-cv-1917
Plaintiffs,
(JUDGE CAPUTO)

v.
STATE FARM FIRE AND CASUALTY
CO.,
Defendant.

MEMORANDUM ORDER
Presently before the Court is Plaintiffs’ Motion for Disclosure of Communications
between State Farm and Its Counsel (Doc. 11). The Motion will be denied because the
case law relied on by Plaintiffs, specifically Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d
1259 (Pa. Super. 2007), has recently been significantly emended by the Pennsylvania
Supreme Court.
Federal Rule of Evidence 501 sets forth the general rule with respect to the
application of privileges in both federal question and diversity cases. It provides:
Except as otherwise required by the Constitution of the United States or provided
by Act of Congress or in rules prescribed by the Supreme Court pursuant to
statutory authority, the privilege of a witness, person, government, State, or
political subdivision thereof shall be governed by the principles of the common
law as they may be interpreted by the courts of the United States in light of
reason and experience. However, in civil actions and proceedings, with respect
to an element of a claim or defense as to which State law supplies the rule of
decision, the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with state law.
Fed. R. Evid. 501. In Pennsylvania, the rule of attorney-client privilege has been codified
at 42 Pa.C.S. § 5928, which states: “[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” (emphasis added). The statute appears to apply on its face only to
communications to the attorney originating from the client. As a result, Pennsylvania courts
had traditionally interpreted this statute to require four elements be satisfied in order for the
protection of attorney-client privilege to be successfully invoked:
1) The asserted holder of the privilege is or sought to become a client;
2) The person to whom the communication was made is a member of the bar of
a court, or his subordinate.
3) The communication relates to a fact of which the attorney was informed by his
client, without the presence of strangers, for the purpose of securing either an
opinion of law, legal services or assistance in a legal matter, and not for the
purpose of committing a crime or tort.
4) The privilege has been claimed and is not waived by the client.
Commonwealth v. Mrozek, 441 Pa. Super. 425, 457 (1995) (emphasis added). However,
according to long-standing tradition rooted in the common law, attorney-client privilege was
broader, applying not only to communications between client and attorney, but also to legal
advice given to the client by their lawyer. See Nat’l Bank of West Grove v. Earle, 196 Pa.
217, 221 (1900) (holding that “[i]f the secrets of the professional relation can be extorted
from counsel in open court by the antagonist of his client, the client will exercise common
prudence by avoiding counsel”). The tension between the narrow language of the statute
and the broader interpretation of the privilege in the common law came to a head in
Nationwide Mut. Ins. Co. v. Fleming. In that case, the Pennsylvania Superior Court,

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interpreting the statutory and decisional law, held that attorney-client privilege protected
from disclosure “only communications made by a client to his or her attorney which [were]
confidential and made in connection with the providing of legal services or advice.” 924 A.2d
at 1264. The court further held that the privilege protected “confidential communications
from an attorney to his or her client only to the extent that such communications contain and
would thus reveal confidential communications from the client.” Id. However, on February
23, 2011, the Pennsylvania Supreme Court, in Gillard v. AIG Ins. Co., rectified these
disparate traditions and held that, in Pennsylvania: ”the attorney-client privilege operates
in a two-way fashion to protect confidential client-to-attorney or attorney-to-client
communications made for the purpose of obtaining or providing professional legal advice.”
--- A.3d ---, 2011 WL 650552 (2011) (emphasis added).
As a result, Fleming is no longer controlling, and, therefore, as long as the
requirements of Federal Rule of Civil Procedure 26(b)(5) regarding the assertion of privilege
have been complied with, the communications between attorney Scott Grenoble and
Defendant State Farm are privileged.
NOW, this

19th

day of April, 2011, IT IS HEREBY ORDERED THAT

Plaintiffs’ Motion for Disclosure of Communications between State Farm and Its
Counsel (Doc. 11) is DENIED.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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