Sedat, Inc. v. Department of Environmental Resources

Citations: 641 A.2d 1243; 163 Pa. Commw. 29; 1994 Pa. Commw. LEXIS 220

Court: Commonwealth Court of Pennsylvania; February 16, 1994; Pennsylvania; State Appellate Court

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Petitioners Sedat, Inc. and Seven Sisters Mining Co. are seeking to compel the Pennsylvania Department of Environmental Resources (DER) to produce two legal memoranda regarding the application of a prior court decision related to a mining permit. Sedat owns a subterranean coal tract in Armstrong County, while Seven Sisters is its lessee. The Fishers own the surface land above this tract and refused to consent to the mining application, prompting Petitioners to file a court action to compel this consent, which was dismissed. The Pennsylvania Superior Court affirmed the dismissal, noting that consent was unnecessary under the Pennsylvania Surface Mining Conservation and Reclamation Act, as the Fishers’ deed exempted coal reserves from ownership.

On December 18, 1992, DER's assistant counsel drafted a memorandum analyzing the Superior Court's ruling, which was circulated internally. In August 1993, Petitioners applied for a mining permit without the Fishers’ consent, but DER refused to process the application, citing incompleteness. Petitioners then sought a mandamus order to compel DER to process their application based on the earlier court decision. In discovery, DER identified two memoranda it refused to produce, claiming attorney-client privilege and work product protection. Petitioners argue that the December 18 memorandum is not privileged since it was not prepared at the request of non-legal staff and assert that it does not qualify as work product because they were not in litigation at that time. They acknowledge that the June 2, 1993 memorandum is protected but contend it should be discoverable as part of DER’s decision-making process. The legal principles regarding attorney-client privilege and work product protection for government attorneys are well-established.

The December 18, 1992 memorandum's central legal issue is whether an agency attorney’s legal analysis, prepared for internal use without specific anticipated litigation, is shielded from disclosure under Rule 4003.B. Rule 4003.3 allows discovery of matters prepared in anticipation of litigation, but does not extend to an attorney’s mental impressions, conclusions, or legal theories. The memorandum's protection under Rule 4003.3 does not require specific litigation to qualify as work product, contrasting with Rule 4003.4 on expert discovery. The concept of 'carry over' work product, recognized in federal courts, indicates that disclosing work product tied to prior litigation could harm the attorney-client interests even after the previous case is resolved. Government agencies often face numerous similar cases, and unauthorized access to prior work product could provide an unfair advantage to opposing parties by revealing the agency's legal strategies. Therefore, the December 18, 1992 memorandum is deemed protected under Rule 4003.3 due to the lack of a prerequisite for anticipated litigation. The June 2, 1993 memorandum, which involves legal advice from a DER attorney to a DER administrator, is also protected from discovery under the attorney-client privilege as per Rule 4003.1, reaffirmed by case law.

No exception to the attorney-client privilege exists for legal advice given by an attorney during adjudicatory decision-making processes. When an attorney acts solely as a legal advisor rather than as a decision-maker, their advice remains privileged, as it can be rejected by the decision-makers and does not constitute policy. The June 2, 1993 memorandum, prepared by a Department of Environmental Resources (DER) attorney, is protected by attorney-client privilege and therefore immune from discovery. Consequently, the Petitioners' motion to compel the production of documents is denied. Under Pennsylvania Rules of Civil Procedure (Pa.R.C.P.) 4003.1, parties may obtain discovery of non-privileged matters relevant to the case, but the privilege protects the specific legal advice in question. Additionally, 25 Pa.Code. 86.64(b) outlines requirements for permit applications related to coal extraction, including obtaining written consent from the current surface owner or providing relevant documentation regarding the right to extract coal.