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.