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The work product doctrine that bars the mental impressions of attorneys from discovery should cover pre-litigation emails between lawyers and public relations professionals, an attorney for a hospital company argued to the Pennsylvania Supreme Court on Wednesday.

Strassburger McKenna Gutnick & Gefsky attorney David Strassburger, who argued for Excela Health, told the justices that emails between his client's counsel and public relations consultants should be barred from discovery because they dealt with issues that were likely to become the subject of litigation. Even though the public relations firm was not asked to provide advice on the topic, keeping the public relations professionals in the loop was essential, he said, given the nuanced issues that can arise when news of a major company announcement travels around the social media landscape.

“It's beyond the understanding of lawyers, it's beyond the understanding of doctors, and certainly beyond hospitals,” Strassburger said. “You need to keep your PR consultants on that team, whether they provide feedback or not.”

The arguments came in the case BouSamra v. Excela Health, in which the high court specifically agreed to hear arguments on whether sending pre-litigation 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.

A three-judge Superior Court panel previously determined that the emails were not privileged, and denied efforts by Excela Health, which runs Westmoreland Regional Hospital, to bar discovery of the documents.

The communications at issue 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.

The justices probed the distinctions that could be decisive if they choose to create a bright-line rule about the application of the work product privilege.

Justice David Wecht questioned where to draw the line, saying, “There are just armies and armies of vendors out there,” and Justice Debra Todd wondered aloud whether caterers would be covered.

Strassburger countered that the “army” included in his understanding of privilege would extend to “generals and captains,” and so caterers would not qualify.

The justices also questioned attorneys on the nature of the relationship between the company and the PR firm, focusing on whether distinctions could be drawn at an in-house PR team versus an outside firm, or whether it is significant that a company has a general contract or is being hired to handle a specific issue.

Strassburger said there was no difference between an in-house and outside counsel, since both would be included in corporate conversations that would ordinarily be considered to be privileged.

Elizabeth L. Jenkins of John A. Caputo & Associates, who represented BouSamra, however, said it all came down to those distinctions.

She said she was not seeking a rule from the court that said communications with PR firms are incapable of qualifying for the privilege, but rather that, considering the facts of the case, the emails were properly allowed into the litigation.

She noted that the firm was not “captive to Excela,” and that the “goal [of the emails] was solely to protect [the company's] reputation.” If the firm had been contacted to deal specifically with a legal issue, or if a member of the firm had been on the executive board, the protection might apply, she said.

“And we didn't have that here,” she said.