On June 18, 2019, the Pennsylvania Supreme Court issued an opinion clarifying several issues about the protection the work product doctrine offers to litigants and established a new analysis to determine whether a party has waived the doctrine’s protection.
In BouSamra v. Excela Health, No. 5 WAP 2018 (Pa. June 18, 2019), the court held that disclosing protected materials to a third party is not sufficient to constitute a waiver of work product protection unless the disclosure (1) is to an adversary or (2) “significantly increases the likelihood that an adversary or anticipated adversary will obtain” the protected materials. While the new analysis appears to narrow the circumstances in which a court may find that a party waived work product protection, its fact-intensive nature necessarily makes the analysis less predictable than a bright-line standard. As a result, the contours of work product protection in Pennsylvania will be further clarified as courts apply the new analysis.
In a 30-page ruling comparing and contrasting Pennsylvania’s attorney-client and work product privileges, the Pennsylvania Supreme Court established a new, fact-intensive analysis to determine whether a litigant has waived work product protection by sharing legal documents with third parties. The court also clarified that materials need not be prepared in anticipation of litigation to qualify for work product protection. In reaching its decision in BouSamra v. Excela Health, No. 5 WAP 2018 (Pa. June 18, 2019), the Pennsylvania Supreme Court rejected arguments aimed at expanding the circumstances under which a court would find that a party waived the protection of the attorney work product doctrine. This precedential new ruling clarifies a number of open questions regarding this powerful protection and indicates that parties may be able to expect robust protection going forward in similar factual circumstances. However, the fact-intensive nature of the analysis renders it less predictable than other bright-line standards and litigants will have to wait for judicial interpretations of the analysis to define its contours.
In BouSamra, the justices analyzed whether legal advice from outside counsel provided to a hospital system lost the protection of the attorney-client and work product privileges when a hospital official forwarded the advice to the hospital system’s public relations and crisis management team. The at-issue documents were sought in discovery by the plaintiff, Dr. George BouSamra, who is suing Excela Health for defamation and interference with prospective and existing contractual relations. Plaintiff argued that when Excela Health’s senior vice president and general counsel forwarded emails containing legal advice to the hospital system’s crisis management consultant, that action waived any potential protection of the work product doctrine and attorney-client privilege.
Pennsylvania’s work product doctrine is embodied in Pa. R.C.P. 4003.3, which states “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.” In BouSamra, the justices acknowledged that “[t]his Court has not yet articulated the proper analysis for waiver of the attorney work product doctrine in Pennsylvania,” and analyzed the language of Rule 4003.3 in addition to its explanatory comment and stated first that Pennsylvania law does not require materials to be prepared “in anticipation of litigation” for the doctrine to attach. The majority pointed out that rejecting this limitation was critical to ensuring that a wide variety of documents, such as “attorney memoranda, drafts of transactional documents, or other non-litigation material” received the same protection as litigation-related materials.
In addition, the justices pointed out that while “disclosure to a third party generally waives the attorney-client privilege, the same cannot be said for application of the work product doctrine because disclosure does not always undermine its purpose.” Thus, rather than mandating that any disclosure would constitute a waiver of work product protection, the court held that “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.”
Under this fact-intensive analysis, courts will have to consider whether the disclosure was “inconsistent with the maintenance of secrecy from the disclosing party’s adversary” and “whether a reasonable basis exists for the disclosing party to believe that the recipient would keep the disclosed material confidential.” Because the factual record was insufficient for the Pennsylvania Supreme Court to undertake its own analysis, the court remanded the case to the trial court for factual findings.
Analysis of the applicability of the attorney-client privilege did not require the establishment of any precedent, however. The court observed that, generally, disclosure of protected material to a third party constitutes waiver of the privilege, unless the disclosure is to an agent of the client or lawyer in order to facilitate the provision of legal advice. In Excela Health’s case, the email sent from outside counsel to Excela Health’s general counsel was originally privileged. However, forwarding the email to an individual at a crisis management firm did not maintain the privilege because that firm was not capable of acting on Excela Health’s behalf. Further, forwarding the email did not serve to facilitate the provision of legal advice because the advice was contained in the email, so the crisis management firm could not retroactively assist outside counsel in providing advice to Excela Health. The court did note, however, that its decision did not change the longstanding rule that the attorney-client privilege is not waived where a third party’s presence is necessary for the provision of legal advice.
The BouSamra ruling is important for several reasons. First, the decision clarifies the fact that attorney work product need not be prepared in anticipation of litigation to be privileged. Second, the Pennsylvania Supreme Court established a definitive test for assessing potential waiver of the work product privilege, ruling that it is not any disclosure of protected materials that waives the privilege, but only disclosure to an adversary or disclosure in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain the information. Finally, the court noted that a disclosing party may have a reasonable basis to believe that the recipient will not disseminate the protected information to actual or anticipated adversaries, even in the absence of a confidentiality instruction. However, because the issue of work product doctrine waiver is a fact-intensive analysis, explicit “do not forward” instructions will bolster a claim for protection.
As the justices acknowledged, “the modern practice of law, specifically for litigators, can involve managing and utilizing media relations.” However, “while situations may arise that require a public relations firm to provide insight, advice, or opinion on legal advice, the scope of such situations must remain narrowly tailored” because evidentiary privileges are disfavored in Pennsylvania. Still, the BouSamra ruling shows that the work product doctrine may extend far enough to protect certain crisis management communications. For practitioners and litigants seeking an unambiguous and predictable standard, the BouSamra ruling may not be entirely satisfactory. Given that the newly articulated analysis is a fact-intensive one that will need to be undertaken on a case-by-case basis, parties will have to wait and see what courts find to constitute action which “significantly increases the likelihood” of an adversary obtaining information, or precisely what circumstances provide a “reasonable basis” to believe information will not be disseminated further. However, the expression of a clear standard providing identifiable guideposts should at least encourage the tendency toward increased predictability and consistency in discovery disputes going forward.