SCOPA on Work Product Doctrine and Attorney-Client Privilege

The Supreme Court of Pennsylvania (SCOPA) published a decision addressing the work product doctrine and the attorney-client privilege - BouSamra v. Excela Health. More specifically, the Court analyzed whether a hospital waived either of those protections by forwarding an email from its outside counsel to its "public relations and crisis management consultant." The emails related to an internal investigation of one of the doctors.

It turns out that the two protections require different analysis in this case. Disclosure to a third party does not necessarily waive the work-product doctrine. Instead, SCOPA concluded that

[T]he 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.

The Court then remanded the case back to the trial court to apply this newly articulated standard.

 The attorney-client privilege is different - disclosure to a third party generally does waive that privilege. There are, however, exceptions. Disclosure to certain agents is protected. For example, disclosure to an expert consultant, accountant, or third party interpreter might not waive the privilege.

[If] the client is a corporation, the attorney-client privilege extends to communications between its attorney and agents or employees authorized to act on the corporation’s behalf . . . . [T]he attorney-client privilege is [generally] waived when a confidential communication is shared with a third party . . . . [T]he critical [issue is whether] the third-party’s presence was either indispensable to the lawyer giving legal advice or facilitated the lawyer’s ability to give legal advice to the client.

SCOPA concluded that forwarding the email to a PR firm neither "facilitated [n]or improved the lawyer’s ability to provide legal advice." Thus, the privilege was waived (but, see above, possibly still protected by attorney work product doctrine).

Two important issues for civil litigation attorneys to keep in mind.