PA Supreme Court Clarifies Standard for Waiver of Work-Product Doctrine
BouSamra v. Excela Health, 2019 WL 2509384 (Pa. June 18, 2019)
The Pennsylvania Supreme Court recently articulated standards for whether a party has waived the work-product doctrine in BouSamra v. Excela Health, 2019 WL 2509384 (Pa. June 18, 2019). Pennsylvania’s work-product doctrine, codified at Pa.R.C.P. 4003.3, precludes discovery of “the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” Pa.R.C.P. 4003.3. That definition, however, does not provide guidance on how to safeguard a potential objection in litigation by avoiding waiver of the privilege.
BouSamra is a defamation case filed by a doctor against Excela Health for disclosure of a study that found plaintiff performed certain unnecessary medical procedures in his practice. During litigation, Excela produced documents and a privilege log. The privilege log listed certain e-mails that were in possession of a third-party public relations firm, which contained legal advice from Excela’s outside counsel. Excela’s general counsel had initially received these e-mails, then forwarded them to the public relations consultant. The plaintiff argued that Excela waived attorney-client privilege and the work-product doctrine by sharing this legal advice with its public relations firm.
In considering this discovery dispute, the trial court found that attorney-client privilege was waived and ordered production of the documents. On appeal to the Superior Court, Excela argued that the trial court erred and both the attorney-client privilege and the work-product doctrine applied. The Superior Court affirmed the trial court’s decision.
Excela appealed the case to the Pennsylvania Supreme Court, which reversed. The Supreme Court explained that while disclosure to a third party waives the attorney-client privilege, the same is not true for the work-product doctrine. Instead, the Supreme Court stated that the doctrine is only waived when a document is shared directly with an adversary or in a manner that increases the likelihood of the adversary obtaining it. The Supreme Court then remanded the issue to the trial court to make a decision based on this newly articulated standard.
The Supreme Court also rejected BouSamra’s argument that the work-product doctrine should only apply to documents prepared in anticipation of litigation. The work product doctrine in federal court, governed by F.R.Civ.P. 26(b)(3), has traditionally only protected documents that attorney or parties have drafted in anticipation of litigation. In BouSamra, the Supreme Court noted that Pa.R.C.P. 4003.3 protects “the mental impressions and processes of an attorney on behalf of a client” and is not limited by the imminence or anticipation of litigation.
The new standard for waiver of the work-product doctrine does not contain a bright-line test, but is a fact-sensitive analysis. Therefore, both counsel and parties should exercise caution when sharing legal advice or strategy with an outside vendor.