Pennsylvania Supreme Court Clarifies Standard for Attorney Work Product Doctrine

In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019)(Op. by Mundy, J.) (Donohue, J., Concurring)(Wecht, J., Concurring), the Pennsylvania Supreme Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine.  

Tort Talkers may recall that the Pennsylvania Superior Court previously determined in this case that emails involving an internal investigation that were sent by a hospital’s attorney to a public relations firm were not barred from discovery under the attorney-client privilege or the work-product doctrine.  Here is a LINK to the Tort Talk blog post on that decision.

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

This matter was remanded back to the trial court for fact finding and application of the newly articulated work product waiver analysis.

Anyone wishing to review the Opinion by Justice Mundy may click this  LINK.  Click HERE to read Justice Donohue's Concurring Opinion.  Click HERE to read Justice Wecht's Concurring Opinion.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this decision to my attention.