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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