Full Opinion

J-A16040-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 EQT CORPORATION : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS VARNER, : SAMUEL AHWESH, AND : SUMMIT LAND CONSULTING LLC : : APPEAL OF: THOMAS VARNER, : SAMUEL AHWESH, SUMMIT LAND : CONSULTING LLC, AND KATHERINE : VARNER : : : RICHARD A. ROSS AND FIELDSTONE : VENTURES, LLC : : Appellants : : : v. : : : EQT CORPORATION : No. 1252 WDA 2025 Appeal from the Order Entered September 23, 2025 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 23-007264 BEFORE: McLAUGHLIN, J., KING, J., and BENDER, P.J.E. MEMORANDUM BY BENDER, P.J.E.: FILED: October 27, 2026 Thomas Varner, Samuel Ahwesh, and Summit Land Consulting, LLC, Intervenors Richard A. Ross and Fieldstone Ventures, LLC, and nonparty witness Katherine Varner (collectively, “Appellants”), appeal from the order J-A16040-26 entered September 23, 2025, which clarified and amended the trial court’s order of September 4, 2025. The order compelled the depositions of the defendants in this case and directed that Katherine Varner appear for deposition and produce the documents requested in the subpoena directed to her, along with further ordering that “Mr. Varner, Mrs. Varner, and Mr. Ahwesh may not assert the non-testifying consulting expert privileges protected by the [Federal] District Court in this case.”1 We affirm. We glean the following facts from the record. Mr. Varner and Mr. Ahwesh worked as landmen for EQT. EQT has alleged that their duties included being responsible for leading the coordination efforts between multiple EQT sub-departments including GIS, Permitting, Title, Operations Planning, Land Administration, Unit Development, and Business Development to ensure that oil and gas wells on EQT’s operations schedule could be timely drilled within the planned oil and gas drilling and production units. These coordination efforts included, inter alia, analyzing, interpreting, preparing, negotiating, and acquiring oil and gas leases, fee interests, lease modifications, and other related contracts. ____________________________________________ 1 As Appellants state in their notice of appeal, both of the trial court’s orders are “collateral orders under Pa.R.A.P. 313.” Notice of Appeal, 9/26/25, at 2. Because the interlocutory order on appeal is separable from and collateral to the main action, involves a right too important to be denied review, and involves a claim that will be irreparably lost if review is postponed until final judgment, we agree with Appellants that the collateral order doctrine applies. See, e.g., Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 n.2 (Pa. Super. 2012); see also Notice of Appeal, 9/26/25, at 2. -2- J-A16040-26 Verified Amended Complaint, 8/27/25, at 3, ¶¶ 12-13. Consequently, EQT has claimed that the men were “privy to EQT trade secrets, and proprietary and confidential information.”2 Id. at ¶ 14. Mr. Varner and Mr. Ahwesh each separated from their employment with EQT in September 2019. Id. at 5, ¶ 29. Upon separation, the men entered into confidential agreements and general release contracts with EQT. Id. at ¶ 30. Subsequently, Mr. Varner and his wife, Katherine Varner, founded Summit Land Consulting, LLC (Summit), and Mr. Ahwesh became a staff member of Summit. Id. at 6, ¶¶ 33-34. The trial court offered the following summary pertaining to a class action suit against EQT in federal court initiated in 2021: • In September 2021, the class action case of Richard A. Ross, et. al. v. EQT Corporation was commenced in the United States District Court for the Western District of Pennsylvania at 21-cv-1585 (the “Ross ____________________________________________ 2 Regarding Mr. Varner, EQT alleged that Varner had access to and knowledge of EQT’s development of oil and gas drilling and production units, including the owners within those units, potential unleased co-tenants within those units, and EQT’s practices and procedures for identifying, locating, and paying such owners. ... Plans about where EQT intends to drill – or not drill – are competitively sensitive and kept confidential to the greatest extent possible to protect EQT’s research into the most potentially productive areas. Further, each production company – like EQT and its subsidiaries – has entire teams of employees dedicated to these tasks and gains competitive advantages from their processes and procedures implemented to accomplish these tasks. Verified Amended Complaint, 8/27/25, at 8, ¶ 44. -3- J-A16040-26 Lawsuit”). In the Ross Lawsuit, named plaintiffs, including Intervenor Mr. Ross, on behalf of themselves and a putative class, alleged that EQT and its subsidiaries failed to pay money to co-tenants relating to the production of oil and gas from property situated in Pennsylvania. • According to allegations of the Amended Complaint in this case, Defendant Summit approached Intervenor Fieldstone about purchasing property so that it could participate in the Ross Lawsuit. EQT alleged that Summit also approached Intervenor Mr. Ross about participating in the Ross Lawsuit. Trial Court Opinion, 12/1/25, at 3-4. EQT alleges that upon learning of the recruitment efforts for the Ross Lawsuit, it served a discovery request seeking information about services provided to the litigants by Varner and documents and communications that were exchanged. The federal court ruled that a portion of the documents were protected from disclosure under the work product doctrine, specifically Federal Rule of Civil Procedure 26(b)(3)(A), which addresses a relationship between a party and a consultant. Via a writ of summons, EQT initiated this action in the court of Common Pleas of Allegheny County, and it subsequently filed a complaint. On February 15, 2024, the named plaintiffs in the federal class action, Ross and Fieldstone, moved to intervene in this case.3 The intervenors served a privilege log ____________________________________________ 3 The trial court explained the instant matter as follows: In the case before this [c]ourt, EQT claimed that the conduct of Mr. Varner and Mr. Ahwesh in furtherance of the Ross Lawsuit, including by acting as litigation consultants, violated a (Footnote Continued Next Page) -4- J-A16040-26 seeking to bar discovery of various communications between intervenors and the defendants in this action. Nevertheless, the parties scheduled depositions for Mr. Varner, Mr. Ahwesh, and Mrs. Varner. However, the deponents failed to appear. On June 23, 2025, defendants filed a motion for protective order, which the intervenors joined, seeking to stay discovery pending the outcome of preliminary objections. On July 1, 2025, EQT filed a motion seeking to compel the depositions of Mr. Varner and Mr. Ahwesh, and enforce the subpoena directed to Mrs. Varner, and for sanctions and contempt. On August 1, 2025, the intervenors filed a motion for protective order seeking to stay discovery until the pleadings are closed. On September 4, 2025, the trial court entered an order that granted EQT’s motion to compel and denied the defendants’ motion for protective order seeking to bar discovery on grounds of privilege. On September 23, 2025, the trial court entered an order clarifying its previous order. Specifically, the trial court confirmed the discovery schedule, and explained that “Mr. Varner, Mrs. Varner, and Mr. Ahwesh may not assert the non- ____________________________________________ confidentiality agreement signed by Mr. Varner and separation agreements signed by both Mr. Varner and Mr. Ahwesh, which agreements included non-disparagement provisions. EQT also alleged that Mr. Varner and Mr. Ahwesh violated trade secret law. Finally, EQT pled claims of tortious interference and sought injunctive relief against all Defendants. In sum, the activities of Defendants in the Ross Lawsuit form the basis for the allegations in this case. Trial Court Opinion, 12/1/25, at 4. -5- J-A16040-26 testifying consulting expert privileges protected by the [the Federal] District Court in this case.” Order, 9/23/25, at 1. This timely appeal followed. The parties and the trial court have complied with Pa.R.A.P. 1925. Appellants present the following issues for review: I. Whether the trial court erred as a matter of law, or in the alternative abused its discretion, by limiting consultant privileges and protections to those arising from consultation in, and in anticipation of, the above-captioned litigation, to the exclusion of other anticipated or pending litigation? II. Whether the trial court erred as a matter of law, or in the alternative abused its discretion, by striking privileges and protections without any review of documents ordered to be produced or any evidentiary hearing? Appellant’s Brief at 7. Generally, “[w]hen reviewing the propriety of a discovery order, this Court determines whether the trial court committed an abuse of discretion.” Virnelson v. Johnson Matthey Inc., 253 A.3d 707, 713 (Pa. Super. 2021). “The purpose of the discovery rules is to ‘prevent surprise and unfairness and to allow a fair trial on the merits.’” Id. (citation omitted). Moreover, it is well settled that evidentiary privileges are not favored. See BouSamra v. Excela Health, 210 A.3d 967, 975 (Pa. 2019). “Courts should permit utilization of an evidentiary privilege only to the very limited extent that ... excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Id. (quotation marks and citation omitted). Therefore, the party asserting an evidentiary privilege has the initial burden to “set forth facts -6- J-A16040-26 showing that the privilege has been properly invoked.” Virnelson, 253 A.3d at 713 (citation omitted). If this initial burden is met, the party seeking disclosure then “must set forth facts showing that disclosure will not violate the privilege.” Id. Whether a privilege protects a communication from disclosure is a question of law. See Saint Luke’s Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540 (Pa. Super. 2014). “Our standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary as [the appellate] court may review the entire record in making its decision. With respect to factual conclusions, we may reverse the trial court only if its findings of fact are predicated on an error of law or are unsupported by competent evidence in the record.” Mastroni–Mucker v. Allstate Ins. Co., 976 A.2d 510, 517–518 (Pa. Super. 2009) (citations omitted). I. A. Privilege4 Appellants first argue that the trial court erred in limiting the application of the consultant privileges to discovery protections related to consultation in and in anticipation of the instant case. See Appellants’ Brief at 29-40. Basically, Appellants contend that the privilege applied by the federal court in the Ross Lawsuit should be invoked here. See id. Appellants assert that Pennsylvania Rule of Civil Procedure 4003.3 protects a representative’s mental ____________________________________________ 4 For clarity, we address Appellants’ first issue in three parts: privilege; discovery; and comity. -7- J-A16040-26 impressions, conclusions or opinions regarding the value or merit of a claim or defense or respecting strategy or tactics, and the trial court should not have disregarded the rule on the basis that the consultation was not retained for this case. See id. at 30-33. Appellants further posit that Pa.R.C.P. 4003.5 limits the disclosure of facts and opinions held by non-testifying experts. See id. at 33-37. In essence, Appellants claim that the privilege should apply to them because they were retained as non-testifying consultants in the Ross Lawsuit, and the trial court erroneously concluded that the privilege would apply only as items prepared in anticipation of the instant litigation. See id. We disagree. “Whenever Pennsylvania is the chosen forum state for a civil action, our state’s procedural rules i.e. the Pennsylvania Rules of Civil Procedure govern, no matter what substantive law our courts must apply in resolving the underlying legal issues.” Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128, 1137 (Pa. Super. 2001). Under Rule 4007.1, “[a] party noticed to be deposed shall be required to appear without subpoena.” Pa.R.C.P. 4007.1(a). To depose a non-party, an individual may seek a subpoena from the court “commanding the person to attend and testify ... and to produce documents or things ... [at] the taking of a deposition in an action or proceeding pending in the court.” Pa.R.C.P. 234.1(a)-(b). The failure to appear at a deposition “may not be excused on the ground that the discovery sought is objectionable unless the party failing -8- J-A16040-26 to act has filed an appropriate objection or has applied for a protective order.” Pa.R.C.P. 4019(a)(2). We are mindful that Pennsylvania’s rules of civil procedure broadly provide that a ‘party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.’ Pa.R.C.P. 4003.1. Rule 4003.3 furthers the liberal discovery rule, instructing that ‘a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney.’ Pa.R.C.P. 4003.3. These provisions advance the truth- determining process so essential to our judicial system and prevent unfair surprise at trial. Rule 4003.3 balances the general rule of expansive discovery with the deep-rooted protection of attorney work product: ‘The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.’ Pa.R.C.P. 4003.3. As has been observed, the work product protection supports our judicial system, based on the adversarial process by allowing counsel privacy to develop ideas, test theories, and explore strategies in support of the client’s interest, without fear that the documents in which the ideas, theories and strategies are written will be revealed to the opposing counsel. Allowing counsel to document legal theories without concern of disclosure encourages better representation of clients, which in turn benefits justice. Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 91 A.3d 680, 686 (Pa. 2014) (footnote omitted and caselaw omitted). “[T]he attorney-client privilege has deep historical roots and indeed is the oldest of the privileges for confidential communications in common law.” Red Vision Systems, Inc. v. National Real Estate Information Services, L.P., 108 A.3d 54, 60 (Pa. Super. 2015). Our Supreme Court explained that -9- J-A16040-26 “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.” Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011). We also observe that “[u]nlike the attorney-client privilege, the work-product privilege ‘does not necessarily involve communications with a client.’” Id. at 59 n.16. “The protection against discovery of work product is designed to shelter the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client’s case.” In re Estate of Paterno, 168 A.3d 187, 197-198 (Pa. Super. 2017) (citation omitted). Our review reveals no evidence to suggest that EQT was seeking to obtain confidential communications between the defendants in this case and their respective attorneys. Likewise, there is no suggestion that the work product of the defendants’ respective attorneys in this matter was sought by EQT or subject to disclosure by the trial court’s order. Therefore, we conclude that the trial court did not err in determining that the protections afforded under Pa.R.C.P. 4003.3 are inapplicable. B. Discovery We next address whether the trial court correctly determined that the protection against the disclosure of facts and opinions held by non-testifying experts is not applicable to this matter. Discovery connected to expert testimony is addressed in Rule 4003.5. Our Supreme Court has observed: - 10 - J-A16040-26 Rule 4003.5 specifically addresses discovery related to expert witnesses who are expected to testify at trial, where such information is ‘otherwise discoverable’ under Rule 4003.1, which recognizes that privileged documents are not discoverable. Generally, a party may discover ‘facts known and opinions held by an expert’ through interrogatories requiring the party to identify the testifying expert witness, the subject matter on which the expert will testify, ‘the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.’ Pa.R.C.P. 4003.5(a)(1)(b); see supra p.2 n.2 for text of Rule 4003.5. Additionally, ‘[u]pon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.’ Pa.R.C.P. 4003.5(a)(2). Barrick, 91 A.3d at 687 (footnote omitted). Pa.R.C.P. 4003.5(a)(3) provides, in relevant part, that a “party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial[.]” Pa.R.C.P. 4003.5(a)(3). The comment to Rule 4003.5 explains that a “regular employe[e] of a party who may have collected facts, prepared reports and rendered opinions, and who may be qualified as an expert” is not covered by Rule 4003.5(a)(3) and “has no immunity from discovery, simply because the party elects not to call him at trial,” because such an employee “is not an ‘expert’ within the meaning of the Rule.” Id. at explanatory cmt. (1978). In Virnelson, this Court recognized that a consultant who was not retained as an expert for - 11 - J-A16040-26 purposes of litigation was not immunized from discovery by Rule 4003.5(a)(3). Virnelson, 253 A.3d at 715. In addition, we have repeatedly explained that Rule 4003.5 addresses only the discovery of facts and opinions acquired or divulged in anticipation of litigation. By its own terms, Rule 4003.5 allows limited discovery of expert opinions “acquired or developed in anticipation of litigation.” As this language suggests, the rule governs discovery of opinions that a party or a potential party to litigation solicits from a non- party expert. The explanatory note to the Rule, moreover, emphasizes that Rule 4003.5 is not applicable to discovery and deposition procedure where a defendant is himself an expert, such as a physician, architect or other professional person, and the alleged improper exercise of his professional skills is involved in the action. Such a defendant can be examined by written interrogatories under Rule 4005 or by oral deposition under Rule 4007.1. Neal by Neal v. Lu, 530 A.2d 103, 106-107 (Pa. Super. 1987) (emphasis in original). Rule 4003.5 does not apply to party witnesses, but only to “hired” experts whose opinions were developed in anticipation of litigation or trial through interrogatories. See id. at 106 (holding that “[t]he Rule simply does not apply to expert opinions of a party when a matter within that party’s field of expertise is at issue”). Here, the trial court directed the deposition of party witnesses. Further, the witnesses’ opinions were not “acquired or developed in anticipation of litigation” as contemplated under Rule 4003.5. Therefore, the consulting - 12 - J-A16040-26 expert privilege is not applicable. Appellants’ argument that the trial court erred in declining to invoke the privilege to limit discovery fails. C. Comity Appellants also contend that comity and fundamental fairness support requiring the trial court to respect the Ross Lawsuit privileges or, alternatively, proceed with heightened caution. See Appellants’ Brief at 38-40. Appellants acknowledge a dearth of analogous caselaw in the Commonwealth, and cite a case from Texas, where the Texas Court of Appeals concluded that materials protected in a federal court case should be precluded from disclosure in a state matter. See Appellant’s Brief at 39-40 (citing Keene Corp v. Caldwell, 840 S.W.2d 715 (Tex.App. 1992)). Appellants assert that the decision in the Ross Lawsuit limiting discovery should likewise limit discovery here, even though “the underlying matter is a separate action involving different claims and different defendants.” See id. at 38. Comity is a principle in which a trial court gives “effect to laws and judicial decisions of another state out of deference and mutual respect, rather than out of duty.” Neyman v. Buckley, 153 A.3d 1010, 1017 (Pa. Super. 2016) (citation omitted). We have further explained: Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation. Hilkmann v. Hilkmann, 816 A.2d 242, 245 (Pa. Super. 2003). - 13 - J-A16040-26 The trial court may exercise comity when “application of another state’s law contradicts no public policy of Pennsylvania and instead furthers a Pennsylvania policy.” Neyman, 153 A.3d at 1017 (citation omitted). In addition, “application of comity is a matter of judicial discretion.” Id. (citation omitted). It is undisputed by the parties that the trial court conferred with the federal judge in the Ross Lawsuit prior to making its decision in this matter. Specifically, the trial court stated: During conference with counsel on August 18, 2025, this jurist informed counsel of her intention to confer with Judge Stickman[5] regarding the interplay between his finding that a consulting privilege applied in the Ross Lawsuit and the case before this jurist. After counsel consented to this course of action, as confirmed by the Court’s Order dated August 18, 2025 [Docket Document No. 70], the undersigned conferred with Judge Stickman, who concurred generally with the rationale of this jurist. Trial Court Opinion, 12/1/25, at 6-7 (emphasis added). We discern no abuse of discretion on the part of the trial court in its handling of the matter and its consultation with the federal court. Indeed, the trial court, prior to making the instant ruling, proceeded with respect for the court overseeing the Ross Lawsuit by conferring with the judge in that matter, which Appellants admit is a “separate action involving different claims and different defendants.” Appellants’ Brief at 38. Therefore, Appellants’ ____________________________________________ 5 The Honorable William S. Stickman, IV, Judge of the United States District Court for the Western District of Pennsylvania, is presiding over the Ross Lawsuit. - 14 - J-A16040-26 suggestion that comity should be applied or more respect given to the federal court’s determination in a separate matter lacks merit. II. Appellants last argue that the trial court erred in striking privileges and protections without an in camera review of documents ordered to be produced or an evidentiary hearing. See Appellants’ Brief at 41-48. Appellants contend that the trial court did not review any documents and thus we should vacate and remand for the trial court to develop a record on the factual issues raised. See id. Again, we disagree. As discussed above, the trial court correctly ruled that the consulting expert privilege was not applicable. This legal determination was based upon Appellants’ relationship to this case.6 As such, Appellants did not meet the legal requirements to invoke the consulting expert privilege because they were not non-testifying consulting experts. It is the responsibility of the party seeking the protection of a privilege to meet its burden of proof to invoke the ____________________________________________ 6 As EQT correctly observes, [t]he privilege dispute here does not turn on a contested and open factual question to which evidentiary presentation is needed. It turns on the legal question of whether the trial court erred “by limiting consultant privileges and protections to those arising from consultation in, and in anticipation of, the above-captioned litigation, to the exclusion of other anticipated or pending litigation”—to borrow [Appellants’] words. Appellants’ Br. 7; see also id. at 34 (“the trial court based its ruling on the nature of the litigation that was anticipated”). Appellee’s Brief at 58-59. - 15 - J-A16040-26 privilege. See Knopick v. Boyle, 189 A.3d 432, 441 (Pa. Super. 2018) (stating that “[a]s the party raising the attorney-client privilege, Appellant failed to satisfy the burden of production to invoke protection under the privilege”). Appellants have failed to meet their burden, and we decline to allow them to revisit their evidentiary obligation. For the reasons set forth above, we affirm the decision of the trial court granting the motion to compel witnesses to appear for deposition and denying Appellants’ motion for protective order. We recognize that this case is before this Court on an interlocutory discovery motion, such that this Court’s affirmance will result in the case returning to the trial court for further pre- trial proceedings. As the trial court stated: The [c]ourt’s decision did not “forbid” [Appellants] from asserting objections based on other claims of privilege or for other reasons in response to specific questions at depositions. Nor did the [c]ourt’s decision prohibit the redaction/withholding of documents based on other claims of privilege. However, in asserting privilege, the parties and witnesses bear the burden of demonstrating that the materials are protected from disclosure in this case, not simply based on rules in the Ross [Lawsuit]. Trial Court Opinion, 12/1/25, at 9. We have explained that “a witness may ordinarily only assert [a] privilege to avoid responding to a particular question. A blanket privilege generally is not permitted.” Commonwealth v. Kirwan, 847 A.2d 61, 65 (Pa. Super. 2004)). Accordingly, Appellants may assert objections based upon - 16 - J-A16040-26 privilege in response to particular questions and interrogatories that may be resolved by the trial court at that time. Order affirmed. DATE: 10/27/2026 - 17 -