The Pennsylvania Supreme Court has agreed to consider whether prelitigation emails between attorneys and a public relations firm should be barred from discovery.

The justices issued a two-page per curiam order Jan. 30 taking up the appeal in BouSamra v. Excela Health. The high court specifically agreed to hear arguments about whether sending prelitigation emails to public relations consultants waives the work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, to qualify as a privileged person.

In March, a three-judge Superior Court panel determined that emails involving an internal investigation that were sent by a hospital's counsel to a public relations firm were not barred from discovery under either the attorney-client privilege or the work-product doctrine. As part of that ruling, the panel denied efforts by Excela Health, which runs Westmoreland Regional Hospital, to bar discovery of the documents.

David Strassburger of Strassburger McKenna Gutnick & Gefsky said in an emailed statement the issues raised in this case “affect lawyers in all practice areas.”

“We believe the Superior Court panel undervalued the protection afforded a lawyer's mental impressions and the role of consultants in the attorney-client relationship,” he said.

Pittsburgh attorney John Caputo, who is representing BouSamra, declined to comment.

The Superior Court's decision upheld a ruling from the Allegheny County Court of Common Pleas and relied heavily on a 2014 Commonwealth Court decision involving whether documents related to Penn State's internal investigation of convicted child molester Jerry Sandusky's conduct, commonly referred to as the Freeh report, were discoverable.

The communications at issue in BouSamra are related to an investigation the hospital conducted regarding whether two doctors, plaintiffs George BouSamra and Ehab Morcos, were performing unnecessary stent procedures on patients. After the hospital announced publicly that the doctors had been performing the unnecessary procedures, the doctors sued, claiming that the announcement was done in an effort to hurt their business.

In the course of the litigation, the doctors sought any documents related to the defendant's plan to disclose the findings of its investigations to the media.

According to Superior Court Judge Mary Jane Bowes, who wrote the unanimous and precedential opinion, communications between the attorneys and the public relations firm were not subject to attorney-client privilege, since the media firm was a third party that was not involved in developing the legal determination about whether the doctors' names should have been disclosed to the media. Bowes further said that, although an opinion letter sent by outside counsel to the hospital's in-house counsel qualified as work-product material, the privilege was waived when the hospital's counsel forwarded the communication to the media company.

“Our sister court indicated that the work-product privilege could be waived, just as the attorney-client privilege, if the materials in question were disclosed by the client to a third party,” Bowes said. “We, therefore, hold that the work-product privilege, like the attorney-client privilege, was waived through Excela's dissemination of [the outside counsel]'s email to an outside party.”

According to Bowes, Excela hired two independent outside peer-review firms to look into whether the doctors were performing unnecessary stent procedures. After both outside firms issued reports suggesting that they were, the doctors were notified and they resigned to avoid suspension, Bowes said.

They subsequently filed suits against the hospital, alleging that the stent-related allegations were brought to destroy their business after the hospital unsuccessfully attempted to acquire their practice.

Before the hospital told the media that the doctors were allegedly performing the unnecessary procedures, the hospital sought advice from outside counsel Hope Foster, who sent an opinion letter to Excela's senior vice president and general counsel, Timothy Fedele. Fedele, according to Bowes, forwarded the letter to the public relations firm it hired to advise about its intended public announcement regarding the doctors.

Bowes cited the Commonwealth Court's decision in Bagwell v. Pennsylvania Department of Education in finding that the work-product doctrine was broad enough to include documents created even when there was no litigation pending. However, she ultimately determined that, sending the letter to a third party waived the privilege.

Bowes also said the hospital failed to provide any evidence that the media company had been involved in making the legal decision about whether to release the names.