During the course of this initial bench trial, an internal memo, Nationwide's "reflex action plan," was discussed during testimony. At the time, Butler County Common Pleas Judge S. Michael Yeager ruled that any privilege related to Nationwide's reflex action plan document had thus been waived by the company and that the document could be discovered.
Nationwide subsequently appealed the ruling, arguing that the document was in fact privileged since it was sent to the company's executives from the general counsel. Yeager's decision, however, was upheld by the Superior Court. Having been appealed for a second time, the issue has now been put before the Pennsylvania Supreme Court in Nationwide Mutual Insurance Co. v. Fleming.
Nationwide's primary argument for privilege is grounded in a 1900 decision. In National Bank of West Grove v. Earle, the court asserted that the advice an attorney gives to a client is privileged, saying, "If it were not, then a man about to become involved in complicated business affairs, whereby he would incur grave responsibilities, should run away from a lawyer rather than consult him."
Robert O. Lampl, the attorney for the plaintiff, countered that argument, saying that since the Earle decision, the topic of attorney-client privilege, and its parameters, has been discussed extensively within the courts. Moreover, he argued that the decision does not apply to the situation at hand because it is not directly tied to privilege. "I think you can discard Earle as dicta," Lampl said. "I don't think it provides a true analysis."
During the course of oral arguments, Burt Rublin, Nationwide's representative, averred that "allowing discovery of communication from attorneys to clients would have a profound chilling effect on that principle of justice." Furthermore, he maintained that it should not and could not be assumed that Nationwide waived privilege to the document simply because comparable documents had been discussed and submitted into evidence.
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