Attorney-Client Privilege • Waiver • Independent Public Relations Firm

BouSamra v. Excela Health et al, PICS Case No. 17-1243 (Pa. Super. July 19, 2017) Bowes, J. (33 pages).

The trial court properly held that the defendant corporation waived attorney-client privilege by forwarding attorney correspondence to an outside public relations consultant since the record did not support a finding that the consultant firm fell within the parameters of corporate employees or agents entitled to attorney-client protection. The appellate court affirmed a trial court discovery order.

Plaintiff was a member of a private cardiology practice known as Westmoreland County Cardiology (WCC). He had staff privileges as an interventional cardiologist at Excela Westmoreland Hospital (Hospital). Defendant Excela Health (Excela) operated the Hospital during the relevant period. In 2007, Excela acquired Latrobe Cardiology. According to plaintiff, there was animosity between the privately-owned WCC and Latrobe. He alleged that Latrobe physicians accused WCC physicians of various improper medical practices, including the placement of medically unnecessary stents. Plaintiff also claimed that after Excela unsuccessfully sought to incorporate WCC into the Excela system, the company hired an outside public relations consultant, Jarrard, Phillips, Cate & Hancock (Jarrard), to aid in publicizing the alleged over-stenting issue. Molly Cate was the Jarrard principal who worked on the Excela media plan while Timothy Fedele served as Excela's senior vice president and general counsel. On Feb. 26, 2011, outside counsel sent an email with advice to Fedele. The same day, Fedele forwarded the email to Cate at Jarrard. Two days later, Excela told Cate that at a press conference on March 2, 2011, plaintiff and his co-worker would be publicly named as cardiologists who over-stented. Excela publicly announced that plaintiff had performed medically unnecessary stenting procedures at the press conference. Plaintiff then sued Excela and other parties alleging defamation, intentional interference with contractual relationships and other claims. Here, Excela and others appealed from a discovery order requiring them to produce documents they claimed were protected by the attorney-client privilege. The appellate court considered whether plaintiff was entitled to view the email of Feb. 26, 2011, from outside counsel to Fedele and forwarded to Jarrard and emails generated in response. The attorney-client privilege is waived when a communication is made in the presence of or communicated to a third party. Excela claimed it did not waive the privilege and maintained that if a communication protected by the privilege is disseminated to member of a team involved in offering legal advice to the client, the privilege is not waived. However, the record did not support a finding that Jarrard fell within the parameters of corporate employees or agents entitled to attorney-client protection under the reasoning of Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015), or Red Vision Sys., Inc. v. Nat'l Real Estate Info Servs., L.P., 108 A.3d 54 (Pa. Super. 2015). Jarrard was an independent business entity operating on a national level and was not involved in any legal issues. Fedele's communication to Jarrard was not designed to gain the outside media consultant's assistance in providing legal advice. The court also made not of case law rejecting the notion that an outside public relations firm can fall within the parameters of the attorney-client privilege. Thus, the trial court did not err in finding that Excela waived the attorney-client privilege.

Attorney-Client Privilege • Waiver • Independent Public Relations Firm

BouSamra v. Excela Health et al, PICS Case No. 17-1243 (Pa. Super. July 19, 2017) Bowes, J. (33 pages).