BouSamra, G. v. Excela Health, 167 A.3d 728

Excela Health (and related defendants) conducted and publicized peer reviews alleging two cardiologists (BouSamra and Morcos) performed unnecessary stenting; a PR firm (Jarrard) was retained to manage the public announcement.
Outside defamation counsel emailed Excela’s in-house counsel (Fedele) on Feb 26, 2011 with legal advice about disclosure; Fedele forwarded that email (and attachments) to Excela managers and to Jarrard’s lead (Cate).
Plaintiffs moved to compel production of the Feb 26 email and related emails among Jarrard personnel (the “Jarrard documents”); Excela claimed attorney-client and work-product protections.
The special master found the outside counsel email privileged; the trial court held Excela waived the attorney-client privilege by sharing the email with Jarrard and ordered production.
Excela appealed, raising two issues: (1) whether attorney-client privilege applies when in-house counsel shares outside-counsel advice with media consultants who were asked for implementation feedback; and (2) whether the work-product doctrine protects the mental impressions in the outside counsel email.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attorney-client privilege protects the Feb 26 outside-counsel email after it was forwarded to Jarrard	Privilege waived; plaintiffs sought the email	Excela: privilege survives because the email was shared with Jarrard to facilitate legal advice (Kovel-style agent) or because Jarrard was the functional equivalent of an employee	Court held privilege was waived — Jarrard was an independent PR vendor uninvolved in rendering legal advice and not an agent necessary to facilitate attorney-client communications
Whether work-product doctrine shields the email or counsel's mental impressions	Plaintiffs argued email not protected or waiver occurred	Excela argued work-product cannot be waived by sharing with a third party unless adversary access substantially increases; email qualifies as work product	Court held Excela failed to carry its burden to show work-product protection. The email was client property, not counsel’s trial-prep file for which work-product would shield disclosure; privilege waived by disclosure to third party

Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (communications from lawyer to client are privileged)
Kovel v. United States, 296 F.2d 918 (2d Cir. 1961) (third-party agent may be covered by privilege when necessary to facilitate lawyer-client communications)
Carbis Walker, LLP v. Hill, Barth & King, LLC, 930 A.2d 573 (Pa. Super. 2007) (privilege waived when communication is shared with third party)
Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015) (corporate privilege governed by agents/officers empowered to act for corporation)
Red Vision Sys., Inc. v. Nat'l Real Estate Info. Servs., L.P., 108 A.3d 54 (Pa. Super. 2015) (corporate attorney-client privilege requires empowered corporate actors)
In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204 (Pa. 2014) (standard: whether privilege or work product protects communication is a question of law reviewed de novo)
Lepley v. Lycoming Cty. Court of Common Pleas, 393 A.2d 306 (Pa. 1978) (work-product is a procedural rule and is not absolute)
Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800 (Pa. Super. 2011) (work-product may apply to counsel’s communications sent to witnesses to prepare them)
F.T.C. v. GlaxoSmithKline, 294 F.3d 141 (D.C. Cir. 2002) (privilege preserved where PR consultants function as integral, employee-like members of litigation team)
In re Bieter Co., 16 F.3d 929 (8th Cir. 1994) (privilege applied to independent consultant intimately involved in corporate project)