Crisis Management and Work Product/Attorney-Client Protection
By Keith R. Fisher
In BouSamra v. Excela Health, the Supreme Court of Pennsylvania held that a hospital that shared emails from its outside counsel with a public relations consultant may not have waived the work product privilege (WPP) but did waive the attorney-client privilege (ACP). The hospital forwarded emails from its outside counsel, including mental impressions, conclusions, and opinions to an outside public relations and crisis management firm, with which it had contracted after a peer review concluded that a staff physician was performing medically unnecessary procedures. The consulting firm shared these messages internally. In a defamation suit, the doctor sought discovery of all of the emails. The lower courts held that ACP was waived because the consultant was not an agent of the hospital and would not assist counsel in giving legal advice and found WPP inapplicable because the doctor sought discovery directly from the client, not its attorney; furthermore, the emails were not sent to the consultant to help outside counsel prepare for litigation.
The PA Supreme Court agreed that ACP had been waived but reversed on WPP. Concluding that confidentiality is not axiomatic to the work product doctrine and its purpose is not always undermined by disclosure to a third party, the Court articulated a “newly articulated work product waiver analysis”: WPP “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 case was remanded for consideration “whether a reasonable basis exists for the disclosing party to believe that the recipient would keep the disclosed material confidential.”