THE BIG STORY

William Guillermo Sylianteng has been named one of the 35 Pennsylvania lawyers on "Lawyers on the Fast Track" as per the Pa. Law Weekly and the Legal Intelligencer. Congratulations to Will.

DISCOVERY-INADVERTENTLY TRANSMITTED DOCUMENT

Carbos Walker LLP v. Hill, Barth and King, LLC, Sup.Ct. opinion by Orie Melvin J. filed 7/23/07 (Pics 07-1129)

Plaintiff's counsel received a letter by fax from an office of counsel for the defendant marked confidential and attorney client privilege. Counsel for plaintiff informed counsel for the defendant that he believed that he inadvertently received the letter. Counsel for defendant requested that it be returned, but plaintiff filed a motion for protective order to determine whether the attorney client privilege prevented discovery of the letter. The trial court ruled that the letter was discoverable and defendant appealed. The trial court had concluded that the attorney client privilege had been waived by the inadvertent transmission.

In affirming, the Superior Court adopted the analysis of Fidelity and Deposit Co. V. McCulloch, 168 Frd. 516 (Ed.Pa. 1996) for determining whether an inadvertent disclosure amounts to waiver of the privilege. The criteria set out in the Fidelity opinion were:

1. The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production;

2. The number of inadvertent disclosures;

3. The extent of the disclosure;

4. Any delay and measures taken to rectify the disclosure; and 5. Whether the overriding interest of justice would be served by relieving the party of its errors.

The Superior Court determined that all of the factors weighed against defendant's position. It noted the limited nature of the disclosure, the heavy burden resting on the party seeking to prevent disclosure and the defendant's delay of 17 days in seeking a return of the document. The Court concluded that the Trial Court did not abuse its discretion in permitting disclosure and affirmed the Order of the Lower Court.

INSURANCE LAW Agent's Breach of Fiduciary Duty

Decker v. Nationwide Insurance, et al CP, Lackawanna County, opinion by Minora J. filed 6/5/07 (Pics 07-1142)

Plaintiffs instituted an action against an insurance company and its agent, alleging that the agent breached its fiduciary duty for failing to advise them to obtain the appropriate insurance policy to fit their needs. The plaintiffs also asserted a bad faith claim against Nationwide, alleging that it failed to pay a claim. Both defendants filed preliminary objections which the Court overruled.

The court noted that a claim for breach of fiduciary duty can be made against an insurance agent which may have a duty to advise an insured of the availability of alternative products where the insured relies on its relationship with the agent. The Court also ruled that it was premature to dismiss the plaintiffs' claim for bad faith as it was not clear from the complaint that the plaintiffs could not be entitled to recover damages.

EVIDENCE Consumption of alcohol

Braun v. Jeffrey M. Brown, CP Phila., opinion by Smith J. Filed 6/29/07 (Pics 07-1176)

Plaintiff sustained severe injuries as a result of a fall from a steel beam while working at a construction site. Several defendants were dismissed from the case leaving only Target as a defendant. The jury entered a verdict in favor of Target, plaintiff's post trial motions were denied and he appealed.

Plaintiff objected to the Court admitting evidence that the plaintiff had been treated for alcoholism, that he drank at lunch just minutes before his fall and that examination of his blood following the accident established a blood alcohol level of .321. Defendants argued that the plaintiff's drinking was responsible for the accident and that this evidence was relevant and probative on the issue of causation. Defendant also noted that the plaintiff had offered evidence that he was only a casual drinker and that he had last consumed alcohol the day before the accident.

The Court found the evidence of alcohol use relevant and probative on the question of causation and fair rebuttal to the inference suggested by plaintiff that he was a casual drinker.