G. BouSamra, M.D. v. Excela Health, Aplts.
210 A.3d 967
Pa.2019Background
- Excela Health commissioned peer reviews alleging medically unnecessary stenting by WCC cardiologists; the results prompted a public communications strategy.
- Outside counsel emailed legal advice to Excela’s in-house SVP & General Counsel, Timothy Fedele, on Feb. 26, 2011; Fedele forwarded that email to Molly Cate of PR firm Jarrard, who circulated it to her team.
- Plaintiff BouSamra sued for defamation and related torts; during discovery he sought production of the email chain and related Jarrard documents, which Excela claimed were protected by attorney-client privilege and the work product doctrine.
- Special Master recommended protection; trial court found Excela waived attorney-client privilege by disclosing to Jarrard and ordered production; Superior Court affirmed as to privilege and rejected work-product protection.
- Pennsylvania Supreme Court granted review to decide (1) proper waiver test for attorney work product when disclosed to non-adversaries/agents and (2) whether a third-party PR consultant can be covered by the attorney-client privilege.
Issues
| Issue | Plaintiff's Argument (BouSamra) | Defendant's Argument (Excela) | Held |
|---|---|---|---|
| Whether forwarding counsel’s email to PR waived attorney work-product protection | Disclosure to Jarrard increased likelihood an adversary would obtain it, so waiver | Work-product protects attorney mental impressions from adversaries; sharing with non-adversary agents should not waive unless shared with an adversary or dramatically increases that risk | Adopted a fact-intensive waiver test: work product is waived if disclosed to an adversary or in a manner that significantly increases the likelihood an adversary will obtain it; remanded for factual findings on waiver |
| Whether the attorney-client privilege extends to a third‑party PR consultant (Kovel issue) | Disclosure to a third party defeats confidentiality; Jarrard was not necessary to counsel’s provision of legal advice so privilege waived | Kovel and related authority support extending privilege to agents whose presence or input is necessary to obtain legal advice (PR can be functionally required) | Privilege waived: forwarding to Jarrard (a non-employee third party) waived the corporate attorney-client privilege because Jarrard was not shown to be necessary to counsel’s advice |
| Whether Rule 4003.3 limits work-product protection to materials prepared in anticipation of litigation | Plaintiff: client-held documents (not counsel’s files) fall outside work-product protection; anticipation-of-litigation requirement restricts protection | Excela: Rule 4003.3 protects attorney mental impressions and also protects representatives’ work product; the phrase “in anticipation of litigation” is inclusive, not limiting | Court held Rule 4003.3 protects attorney mental impressions regardless of whether prepared in anticipation of litigation; but waiver analysis governs disclosure consequences (remand for fact-finding) |
| Proper allocation of burdens to invoke privilege/work product in corporate context | Plaintiff: privilege waived by disclosure to non-authorized employees/third parties; corporation’s privilege applies only to authorized agents/officers | Defendant: privilege and work product may extend to agents/consultants working for the client; corporate agents can be privileged if needed to facilitate legal advice | Court reaffirmed corporate privilege covers communications with authorized corporate agents, but sending privileged communication to an outside PR firm that was not shown to be necessary to counsel’s advice waived the attorney-client privilege |
Key Cases Cited
- United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) (privilege may extend to third-party specialists whose presence is necessary to obtain legal advice)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (work-product waiver occurs when disclosure is inconsistent with keeping material from an adversary; courts consider whether recipient would reasonably maintain confidentiality)
- In re Chevron Corp., 633 F.3d 153 (3d Cir. 2011) (privileges recognized only as necessary to achieve their purposes; supports fact-intensive waiver inquiry)
- Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 (U.S. 1985) (corporation acts through agents; officers/directors normally have power to waive corporate privilege)
- Lepley v. Lycoming County Court of Common Pleas, 393 A.2d 306 (Pa. 1978) (work-product doctrine protects attorney mental impressions and is not a constitutional privilege)
- United States v. Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir. 1997) (distinguishing confidentiality-based attorney-client privilege from work-product protection aimed at adversaries)