Pennsylvania Supreme Court Articulates New Attorney Work Product Doctrine Waiver Analysis

Pennsylvania Supreme Court Articulates New Attorney Work Product Doctrine Waiver Analysis

In BouSamra v. Excela Health, the Pennsylvania Supreme Court considered whether Excela Health waived the attorney work product doctrine or the attorney-client privilege by forwarding an email from outside counsel to its public relations and crisis management consultant.

BouSamra and Morcos are interventional cardiologists and were members of Westmoreland County Cardiology (WCC). In February 2010, Excela began negotiating with WCC intending to bring WCC into Excela’s network; however, those negotiations fell through. In June 2010, Excela engaged Mercer Health & Benefits, LLC (Mercer) to review whether physicians at Westmoreland Regional Hospital, including BouSamra, were performing medically unnecessary stenting. At or about this time, Excela contracted with an outside public relations consultant, Jarrard, Phillips, Cate & Hancock (Jarrard), to assist Excela in managing the anticipated publicity stemming from the results of the peer review studies. (E-mails between Excela and Jarrard are at the center of this discovery dispute.)

In December 2010, Mercer’s study concluded that BouSamra had performed medically unnecessary interventional cardiology procedures. Shortly after receiving the results of the Mercer study, BouSamra resigned his privileges at Excela, and gained privileges at Forbes Regional Hospital, Excela’s competitor. In March 2011, Excela held a press release at which time it publicly acknowledged the results of the Mercer study, and reported that BouSamra and Morcos may have placed stents in 141 patients, unnecessarily.

In March 2012, BouSamra sued Excela seeking damages for defamation and interference with contractual relations. During litigation, Excela created a privilege log of materials, which included a February 26, 2011 email from outside counsel to Excela’s General Counsel (Fedele), which was forwarded to Excela’s management and Jarrard. BouSamra claimed that Excela waived the attorney-client privilege and attorney work product doctrine because the e-mail was sent to Jarrard, a third party outside the attorney-client relationship.

The trial court determined that Excela waived the attorney-client privilege by producing the e-mail to a third party, but did not address the attorney work product doctrine. Excela appealed to the Pennsylvania Superior Court, who recognized that the work product doctrine bars discovery of materials which disclose the mental impressions, conclusions, or opinions of a party’s attorney, but did not protect documents or property which belong to the client. In this case, the Superior Court determined that BouSamra was seeking property that belonged to Excela, not Excela’s attorney. Moreover, the Court noted that Excela did not send the documents to Jarrard to help outside counsel prepare for litigation; and for these reasons, the work product protection did not apply.

Relying on United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), the Superior Court opined the attorney-client privilege may extend to a client’s agent when the presence of an agent is necessary or useful to the lawyer’s dissemination of legal advice. The court concluded, however, that Kovel is inapposite in this case because Jarrard was not involved in outside counsel’s dissemination of legal advice. Therefore, the Superior Court determined that the subject documents were discoverable; and, Excela appealed to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court determined that Excela waived the attorney-client privilege because it disclosed the subject documents to a third party outside the attorney-client relationship. More specifically, the Court did not find persuasive Excela’s argument that the attorney-client privilege should not be found to be waived because Jarrard, as agents of Excela, were facilitating outside counsel’s ability to provide legal advice. In this instance, the Court determined that Jarrard’s presence was neither indispensable to the lawyer giving legal advice nor facilitated the lawyer’s ability to give legal advice to the client.

Turning to the work product doctrine, the Court noted that it had not previously articulated the proper analysis for waiver of the attorney work product doctrine in Pennsylvania, which in its estimation, diverged from the analysis of waiver of attorney-client privilege. After an in camera review of the subject documents, the Court concluded that the e-mail from outside counsel to Fedele constituted attorney work product; thus, the only question was whether Excela waived the work product protection by forwarding the e-mail to Jarrard.  The Court recognized that a fact intensive analysis was required to determine whether Fedele sending outside counsel’s email to Jarrard “significantly increased the likelihood that an adversary or potential adversary would obtain it.” RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 91(4) (2000). In evaluating the maintenance of secrecy standard, the Court held that a lower court should consider whether a reasonable basis exists for the disclosing party to believe “that the recipient would keep the disclosed material confidential. Here, because the factual record was insufficient for the Court to conduct a waiver analysis, it remanded the case back to the trial court for factual findings and application of the newly articulated waiver analysis.