Not everything stamped “privileged” is safe from prying eyes. The Pennsylvania Superior Court recently ruled that interview notes compiled by a sorority’s leadership after a tragic incident were not shielded by attorney-client privilege or the attorney work product doctrine. This decision serves as a cautionary tale for lawyers and their clients on how privilege works—and when it does not. See King v. Alpha Sigma Tau Sorority et al., 2025 PA Super 8, No. 55 MDA 2024 (Pa. Super 2025).
Background: A Tragic Night Leads to Legal Fallout
In 2019, college freshman Justin P. King attended a party hosted by the Alpha Sigma Tau Sorority. Allegedly encouraged by sorority members to consume excessive alcohol, King tragically fell down a steep slope on campus, suffering fatal injuries.
Two years later, King’s family filed a lawsuit against the sorority and its members, claiming they were responsible for his death. During discovery, the Plaintiff learned that shortly after the incident, the sorority’s CEO and COO had interviewed 15 members who were at the party. These interviews, conducted at the direction of the sorority’s attorney, resulted in 48 pages of handwritten notes.
The sorority argued these notes were protected under attorney-client privilege and the attorney work product doctrine. The Plaintiff, however, sought their disclosure, and the court had to decide whether the notes were fair game.
What’s Privileged—and What’s Not?
1. Attorney Work Product Doctrine
Under Pennsylvania law, the attorney work product doctrine protects materials prepared by or for an attorney in anticipation of litigation. But this protection does not automatically extend to materials prepared by non-attorneys, even if they’re acting at a lawyer’s direction.
The sorority argued that the notes qualified as attorney work product because its CEO and COO took them at the attorney’s request, and the attorney attended the interviews. The court disagreed, noting that:
- The notes were not created by the attorney or under specific instructions about what to write.
- The notes did not contain any mental impressions from the sorority’s representatives.
2. Attorney-Client Privilege
Attorney-client privilege protects confidential communications between a client and their attorney made for the purpose of seeking or providing legal advice. But the privilege does not apply to communications involving third parties unless those third parties are necessary to the legal consultation.
The court found that the sorority’s notes were not privileged because:
- The interviews were conducted in the presence of third parties (the sorority members).
- The notes did not involve direct communications between the sorority and its attorney.
- The attorney did not learn any confidential information through the notes.
Lessons for Lawyers: How to Protect Privileged Information
This ruling is a wake-up call for anyone navigating post-incident investigations. If you want to ensure your notes and communications are shielded, here is what you need to keep in mind:
- Let the Lawyer Take the Lead: To maximize protection under the attorney work product doctrine, the attorney should personally conduct interviews and take notes. Notes prepared by non-attorneys (even at the attorney’s direction) do not necessarily enjoy the same level of protection.
- Keep It Confidential: Attorney-client privilege only applies to private communications between a client and their lawyer. Avoid involving third parties unless absolutely necessary.
- Be Strategic About Documentation by Non-Lawyer Representatives: If notes or summaries of a non-attorney are necessary, realize that they may be discoverable unless they contain questions and observations confidentiality shared with their attorney or mental impressions, conclusions, and opinions.
[View source.]
