Stephen Daly

Nearly every lawyer shares one fear in common: the inadvertent waiver of the attorney-client privilege. Last summer, in BouSamra v. Excela Health, 167 A.3d 728 (Pa. Super. Ct. 2017), the Superior Court of Pennsylvania held that a company waived the attorney-client privilege when it forwarded an email containing legal advice to one of its consultants, a public relations firm. On Jan. 30, the Supreme Court granted an interlocutory appeal in the case to address the question of waiver, specifically to what extent does the attorney-client privilege and work-product protection extend to an outside consultant? The Supreme Court's decision could transform the way Pennsylvania lawyers interact with clients and their consultants, particularly if the Supreme Court were to affirm the order of the Superior Court and uphold the waiver.

The underlying case concerns a dispute between two cardiology practices, one of which was owned by Excela Health (Excela). In the lawsuit, the plaintiff, Dr. George BouSamra, contends that Excela and other parties spread false rumors about his cardiology practice by, among other things, announcing at a press conference the results of a peer review study that concluded that BouSamra had performed unnecessary procedures on patients.

In discovery, a privilege dispute arose relating to Excela's communications with its public relations firm, Jarrard, Phillips, Cate, & Hancock (Jarrard). Excela had retained Jarrard to develop a media plan to implement the public announcement over the unnecessary procedures. In the days leading up to the press conference, Excela's outside counsel—a defamation lawyer—offered Excela's in-house counsel, Timothy Fedele, legal advice regarding the press conference. Fedele forwarded outside counsel's email communication to Molly Cate, a principal at Jarrard. Fedele also forwarded the email to Excela management. Excela withheld the forwarded communication as privileged during discovery.