In connection with a case involving a peer review investigation of a cardiologist, the Pennsylvania Supreme Court recently articulated a new standard for waiver of the attorney work product doctrine, providing valuable insight on how organizations should communicate with third parties without risking the disclosure of privileged communications and attorney work product.
In Bousamra v. Excela Health, 210 A.3d 967 (Pa. 2019), the Court considered whether the attorney work product doctrine or the attorney-client privilege was waived when general counsel at Excela Health (“Excela”) forwarded an email containing legal advice from Excela’s outside counsel to its public relations and crisis management consultant. The underlying case arose when Dr. George R. BouSamra, a cardiologist who formerly held privileges to perform interventional cardiology procedures at an Excela-operated hospital was accused of performing medically unnecessary procedures and became the subject of peer review investigation, which identified 141 patients of Dr. BouSamra and his colleague, Dr. Ehab Morcos, who had received potentially medically unnecessary stents in the past year. The results of the peer review investigation received significant media attention when they were publicly acknowledged by Excela in a press release in March of 2011. By March of 2012, Dr. BouSamra had filed a complaint seeking damages for, among other things, defamation and interference with prospective and actual contractual relations.
As the matter continued through the phases of litigation, Dr. BouSamra sought to compel discovery of certain pre-litigation email communications between Excela’s general counsel and its outside counsel that had been forwarded to Excela’s public relations and crisis management consultant. Prior to Excela’s press release publicly acknowledging the results of the peer review investigation, Excela retained outside counsel to seek legal advice on the matter. Regrettably, Excela’s general counsel forwarded an email containing legal advice from outside counsel to an outside public relations firm it had hired to provide crisis management services. Dr. BouSamra argued that by forwarding these otherwise privileged communications to a non-lawyer third party, Excela had waived the attorney-client privilege and work product doctrine with respect to the forwarded communications.
First considering whether the attorney work product doctrine was waived by disclosure to the third party public relations firm, the Court noted that unlike attorney-client privilege, the protection of the attorney work product doctrine belongs to the attorney and held that “the attorney work product doctrine is not waived by disclosure unless the alleged work product is disclosed to an adversary or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.” Although the Court found it readily apparent that the communications at issue did constitute attorney work product, it recognized that whether the disclosure constituted a waiver is a fact-specific inquiry and remanded the issue to the trial court to develop a more complete factual record, directing the lower court to consider “whether a reasonable basis exists for the disclosing party to believe that the recipient would keep the disclosed material confidential.”
Despite leaving open the question of whether the disclosure waived the protection of the attorney work product doctrine, the Court did not hesitate to find that Excela did, in fact, waive attorney-client privilege with respect to the forwarded emails. The Court conceded that there may be circumstances where disclosure to a non-lawyer third-party would be necessary for the provision of legal services, and such disclosure would not serve to waive the attorney-client privilege. However, in this case Excela had forwarded the communications for purposes of public relations management, and not to assist with rendering legal advice. Therefore, by forwarding otherwise privileged communications to a non-lawyer third-party for purposes other than assisting with the provision of legal advice, Excela had waived the attorney-client privilege over those communications.
This case emphasizes the importance of the attorney-client privilege and the attorney work product doctrine and serves as a reminder of the risks associated with disclosing legal communications with third-parties. In light of this ruling, organizations should exercise extreme caution before forwarding emails that might contain legal advice or other confidential communications. They should also educate their employees on the importance of the attorney-client privilege and attorney work product doctrine and develop policies and procedures for better protecting sensitive communications.