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The Pennsylvania Supreme Court has ruled that a hospital embroiled in litigation with one of its former doctors may not have waived its protection under the attorney work-product doctrine by forwarding emails from its counsel to an outside public relations firm.

In reversing a ruling by a three-judge Superior Court panel that had deemed the emails discoverable, the justices in BouSamra v. Excela Health remanded the case to the trial court with directions to engage in “fact finding and application of the newly articulated work product waiver analysis.”

That newly articulated analysis by the Supreme Court majority is premised upon the holding that “the 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 emails in dispute were between defendant Excela Health and its outside counsel. Excela's  senior vice president and general counsel, Timothy Fedele, forwarded the emails to Molly Cate, a principal of the hospital's public relations and crisis management consultant, Jarrard Phillips Cate & Hancock. Plaintiff Dr. George BouSamra, who is suing Excela alleging defamation and interference with prospective and actual contractual relations, argued that Fedele's choice to disclose the emails to a third party constituted a waiver of the work-product doctrine and rendered the communications discoverable.

“After an in camera review of the Jarrard documents, it is readily apparent that the email from outside counsel to Fedele constituted attorney work product,” Justice Sallie Updyke Mundy wrote for the majority. “The critical inquiry, then, is whether the work product doctrine was waived.”

Answering that question would require an “intensive analysis” by the trial court regarding whether forwarding the emails to Cate ”'significantly increased the likelihood that an adversary or potential adversary would obtain it,'” Mundy said, quoting language from the Restatement (Third) of the Law Governing Lawyers Section 91(4).

But while the question remains whether Excela waived the work-product doctrine when it forwarded emails from its outside counsel to its outside PR consultant, the justices said there was no question that the hospital waived attorney-client privilege, which requires a heightened level of confidentiality to remain applicable.

Mundy rejected Excela's reliance on the U.S. Court of Appeals for the Second Circuit's 1961 ruling in United States v. Kovel and the Pennsylvania Superior Court's 1995 ruling in Commonwealth v. Noll to support its argument that looping in a third party did not void attorney-client privilege.

“In both cases, the critical fact is that 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,” Mundy said. “That is not the case here. Fedele sending the email in question to Cate, after it was sent to him, did not retroactively assist either outside counsel or Fedele in providing legal advice to Excela. In fact, the email did not solicit advice or input from Cate, nor did the attorney send it to Cate. Thus, this case is not akin to Kovel or Noll, where the third-party's receipt of information facilitated or improved the lawyer's ability to provide legal advice.”

The justices were unanimous in the result, but Justice Christine Donohue, joined by Justices Debra Todd and Kevin Dougherty, wrote a separate concurring opinion advocating for the trial court's work-product waiver analysis to focus heavily on whether Fedele took precautions to safeguard the information he forwarded to Cate.

“As one federal court has keenly observed, 'failure to take adequate precautions to prevent an adversary from obtaining work product information warrants waiver because '[i]ndifference to such a consequence indicates that protection of the immunity was not important to the person claiming the protection,'” Donohue said.

Justice David Wecht penned his own concurring opinion expressing concern that, as courts begin to apply the newly articulated work-product waiver analysis, a too-strict approach “might have a chilling effect on an attorney's ability to disclose work product to third parties, thus undermining the primary aim of the doctrine—to provide an attorney with a zone of privacy within which effectively to represent the client.”

Excela was represented by David Strassburger of Strassburger McKenna Gutnick & Gefsky in Pittsburgh.

“We are looking forward to the opportunity to establish in the trial court that the work-product protection that we've been asserting from the beginning was not waived,” Strassburger said. “We thought the decision of the Supreme Court was thoughtful and correct on that issue and we're pleased with the result.”

Counsel for BouSamra, Elizabeth L. Jenkins of John A. Caputo & Associates in Pittsburgh, could not be reached for comment.