The Supreme Court of Pennsylvania recently clarified the standards for waiver of the work product privilege and attorney-client privilege, concluding that a hospital that shared emails from its outside counsel with a public relations consultant may not have waived the work product privilege but did waive the attorney-client privilege. See BouSamra v. Excela Health, 2019 WL 2509384 (Pa. June 18, 2019).
In BouSamra, a hospital conducted a peer review which concluded that one of its doctors was performing medically unnecessary interventional procedures. The hospital contracted with an outside public relations and crisis management consultant to assist with the anticipated publicity stemming from the peer review results. The hospital subsequently forwarded emails from its outside counsel, including mental impressions, conclusions, and opinions, to the third-party consultant who then forwarded the emails to the rest of her team.
The doctor filed suit against the hospital for defamation and filed a motion to compel discovery of the emails between the hospital, the consultant, and the consultant’s team. The trial court held that because the consultant was not an agent of the hospital and would not assist counsel in giving legal advice, the attorney client privilege was waived. However, the trial court did not address the applicability of the work product doctrine. On appeal, the Superior Court affirmed the trial court’s order and further held that the work product doctrine was inapplicable because the doctor sought to discover emails directly from the client, not the client’s attorney; the emails belonged to the client, not outside counsel; and the emails were not sent to the consultant to help outside counsel prepare for litigation.
The Supreme Court reversed and remanded the Superior Court’s decision, noting that confidentiality is not a cornerstone of the work product doctrine and disclosure to a third party does not always undermine the purpose of the work product doctrine. The purpose of the work product doctrine is to “protect the mental impressions and processes of an attorney acting on behalf of a client, regardless of whether the work product was prepared in anticipation of litigation.” The Court set forth a “newly articulated work product waiver analysis” as follows: “the work product doctrine is waived when the work product is shared with an adversary, or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.” The Supreme Court noted that a trial court “should consider whether a reasonable basis exists for the disclosing party to believe that the recipient would keep the disclosed material confidential.”
With respect to the attorney-client privilege, the Supreme Court held that the privilege had been waived when the email was shared with the third party consultant. The Court noted that in certain situations, the presence of a third party may be “indispensable to the lawyer giving legal advice” or “facilitate the lawyer’s ability to give legal advice to the client.” Under those limited circumstances, the attorney-client privilege would not be waived by the presence of a third-party.