New Work Product Waiver Analysis Provides Third-Party Communications Clarity

The Legal Intelligencer

(by Stephen Antonelli and Carly Loomis-Gustafson)

In mid-June, in a unanimous opinion, the Pennsylvania Supreme Court articulated a new work product doctrine waiver analysis in BouSamra v. Excela Health, No. 5 WAP 2018 (Pa. June 18, 2019). While the decision will be seen as a victory for corporate defendants in that it provides clarity concerning waiver of the attorney work product doctrine related to communications and consultations with third parties in anticipation of litigation, it should also be read as a cautionary tale in support of continued mindfulness in dissemination of privileged information.

The decision stems from a discovery dispute in a defamation case commenced by Dr. George R. BouSamra against Excela Health Westmoreland Regional Hospital and others. BouSamra filed suit after another cardiologist affiliated with Excela accused BouSamra and his colleague, Dr. Ehab Morcos, of regularly overestimating arterial blockages and, as a result, performing improper and medically unnecessary stenting. As part of an attempt to manage potential public relations issues stemming from the results of two peer review studies related to the accusations, Excela’s in-house counsel forwarded an email containing privileged information that it had received from outside counsel to a member of a third-party public relations firm, who then forwarded the email to other members of the firm.

After noticing the emails between Excela and its public relations firm on Excela’s privilege log, BouSamra filed a motion to compel production of the emails. A special master assigned by the trial court determined that Excela had not waived any privileges. The trial court sustained BouSamra’s exceptions to the special master’s recommendation, noting that the third-party was not an agent of Excela’s counsel. It therefore concluded that the attorney-client privilege had been waived. Neither the trial court nor the special master discussed waiver of the work product doctrine. On appeal, a unanimous panel of the Pennsylvania Superior Court affirmed the trial court’s order with respect to the attorney-client privilege, and also found the work product doctrine to be inapplicable. The Superior Court’s decision was based, in part, upon its reasoning that the document at issue belonged to Excela rather than its outside counsel, and that it had not been shared with the public relations firm to assist outside counsel with preparing for litigation.

After granting Excela’s petition for allowance of appeal, the Pennsylvania Supreme Court affirmed in part and reversed in part. The court agreed with BouSamra and ruled that Excela had indeed waived the attorney-client privilege when it shared the protected communication with the public relations firm on the grounds that the third-party firm was not an agent of Excela that was facilitating an ability to provide legal advice. The court reversed, however, on the issue of whether the work product doctrine had been waived. The court articulated a new work product waiver analysis by holding that the privilege is not waived merely by the disclosure to a third party, “unless the alleged work product is disclosed to an adversary or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.”

In announcing this new rule, the court acknowledged that “a fact intensive analysis is required” to determine whether the privilege had been waived. As a result, and because the factual record was insufficient for it to conduct the waiver analysis, the court remanded the matter to the trial court for “factual finding and application of the newly articulated waiver analysis,” as it is the role of the trial court to determine which facts and circumstances should bear the most weight in any given analysis.

In its opinion, the court noted the distinguishing characteristics of the attorney-client privilege and the work product doctrine: disclosure to a third party generally waives the attorney-client privilege, but the same cannot be said for application of the work product doctrine because disclosure does not always undermine its purpose. Stated differently, the attorney-client privilege “is designed to protect confidentiality, so that any disclosure outside the magic circle is inconsistent with the privilege; by contrast, work product protection is provided against adversaries.” Furthermore, the protection afforded by the attorney-client privilege belongs to the client and protects disclosure made to their own attorney, while the work product doctrine belongs to the counsel, as it protects disclosure of the attorney’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories.

Even though the BouSamra opinion will likely be welcomed by corporate entities and the defense bar, it should not be read as providing blanket protection for all communications that might, in any way, constitute an attorney’s work product. The court simply established a means by which to determine if the purpose of the doctrine has been undermined by focusing the analysis to disclosure to an adversary, pursuant to the essential purpose of the Pennsylvania Rule of Civil Procedure 4003.3.

Communications between attorneys or clients with third parties, especially in the context of seeking consultation for a real or potential crisis, can often occur at a moment’s notice. Despite BouSamra, attorneys should continue to carefully consider the consequences of sharing information and the manner in which the information is shared. In other words, attorneys—whether outside or inside counsel—should not view BouSamra as an invitation to be less careful with their third-party communications, especially given the fact that courts have yet to apply the requisite “fact intensive analysis” to the new test.

As addressed by Justice Christine Donohue in her concurring opinion, the court’s grant of allocatur “presumed that the documents at issue were otherwise (i.e., absent waiver) protected by the work product doctrine.” The unanimous majority opinion then “makes the same presumption, as it merely announces that the documents are attorney work product without any disclosure of the nature of the contents of those documents (including whether or not they were prepared in litigation).” The court’s decision not to provide the retrospection that may be helpful to attorneys in determining, prior to disseminating information, how a court may classify work product in a specific instance leaves room for differing opinions on the issue. In other words, there must be an analysis of whether the documents at issue actually qualify as work product, which is often broadly defined as the impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories of an attorney.

Although BouSamra provides clarity and comfort to attorneys who wish to more freely communicate with third-party consultants, it does not open the door for protection of haphazard communications with third parties under the guise of work product protection.

Stephen A. Antonelli is a shareholder in the employment and labor and litigation groups of Babst Calland Clements & Zomnir. His practice includes representing employers in all phases of labor and employment law, as well as matters of general litigation. Contact him at santonelli@babstcalland.com.

Carly Loomis-Gustafson is an associate in the litigation group of the firm, where she assists in the ligation of a wide variety of legal matters. Contact her at cloomis-gustafson@babstcalland.com.

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