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Waiver of Attorney Work Product and Attorney-Client Privilege Protections

Pennsylvania Supreme Court: Waiver of Attorney Work Product and Attorney-Client Privilege Protections

by Patrick Casey, Esquire

The attorney-client privilege and attorney work product doctrine are two well-known evidentiary protections. Although both protect otherwise relevant and “discoverable” materials from disclosure, the two evidentiary protections serve different purposes and are subject to different standards.

The purpose of the attorney-client privilege is to foster the free and open communication of information between the lawyer and client. Whereas, the purpose of the work product doctrine is to protect the mental impressions of an attorney acting on behalf of a client. Consistent with the purposes of these evidentiary protections, the attorney-client privilege is held by the client, while the work product protection is held by the attorney.

Recently, the Pennsylvania Supreme Court clarified the circumstances under which attorney work product protection may be waived, while distinguishing such waiver from the standard for waiver of the attorney-client privilege.

In BouSamra v. Excela Health, No. 5 WAP 2018, — A.3d —, 2019 WL 2509384, (Pa. June 18, 2019), the Pennsylvania Supreme Court considered whether the defendant, Excela Health, had waived the attorney-client and the work product protections by forwarding an email containing legal advice that was authored by Excela’s outside counsel to its public relations consultant.

Initially, the email authored by outside counsel for Excela was sent to the vice president and general counsel of Excela. The email contained legal advice related to an anticipated lawsuit with Dr. BouSamra. This initial communication was clearly protected by the attorney-client privilege. Id. at *13.

The Excela executive and in-house attorney then forwarded outside counsel’s email on to Excela’s public relations consultant. The email was shared internally by several employees of the consultant who worked on the Excela account. Importantly, the consultant did not facilitate the provision of legal advice to the client; it merely received the email containing that legal advice for its own use in managing public relations for the client. The second email and those that followed created the waiver issue at the heart of the BouSamra opinion.
After litigation commenced with Dr. BouSamra, Excela listed the email chain on a privilege log and declined to produce it in discovery by asserting both the attorney-client privilege and the work product doctrine. Dr. BouSamra filed a motion to compel production of the email chain and the matter was taken before a discovery master and then the trial judge. See id. at *3-4.

Upon review by the trial judge, it was determined that the email chain was not an attorney-client privileged communication once it was forwarded to the public relations consultant. The work product doctrine was not addressed by the trial court. Id. at 4.

Excela appealed the trial court’s ruling to the Pennsylvania Superior Court, which unanimously affirmed the trial court’s ruling as to the attorney-client privilege and added that the work product doctrine was inapplicable because Dr. BouSamra sought disclosure of emails in possession of the public relations consultant, not outside counsel. See id.

On appeal to the Pennsylvania Supreme Court, the ruling as to the attorney-client privilege was once again affirmed, but the ruling as to the work product doctrine was reversed and remanded. Id. at *15. In doing so, the Pennsylvania Supreme Court, for the first time, set forth a rule governing waiver of the work product protection. Id. at *7.

Under BouSamra, courts attempting to determine whether the work product protection was waived by disclosure to third parties must make a factual determination as to whether “a reasonable basis exists for the disclosing party to believe that the recipient would keep the disclosed material confidential.” Id. at *9 (internal citations and quotations omitted). In BouSamra, the Supreme Court found the factual record to be lacking on this question, so it remanded the matter to the trial court to make a factual finding and apply the attorney work product doctrine consistent with the Court’s holding. Id. at *15.

In addition to setting forth a new waiver rule for the work product doctrine, this opinion highlights some differences between the level of confidentiality required to maintain attorney-client privilege and that required to maintain the attorney work product doctrine’s protections.

The attorney-client privilege only applies to protect communications between an attorney and client where legal advice is sought or provided. It has been recognized that attorney-client protected communications may also include a third party, so long as the third party is facilitating the provision of legal advice. If, however, anyone outside the protected group is voluntarily included in the communication, then the privilege is waived. The Pennsylvania Supreme Court referred to this as “the heightened level of confidentiality required under the attorney-client privilege.” Id. at *9.

Unlike the attorney-client privilege, disclosure to third parties is not an automatic waiver of work product protections. “Indeed, while the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for the waiver of the work product doctrine.” Id. The Supreme Court also specifically cautioned against conflating the attorney-client privilege’s heightened confidentiality with the kind of confidentiality required to maintain the protections of the work product doctrine. “Commentators have recognized the confusion which can follow in comparing the confidentiality associated with the attorney-client privilege and the work product doctrine.” Id.

Practically speaking, the BouSamra opinion demonstrates how the work product doctrine can provide broader protection for a communication than the attorney-client privilege. Disclosure of a communication containing legal advice to a third party will waive the attorney-client privilege, but not necessarily waive the work product doctrine, unless the facts demonstrate that the disclosure “significantly increased the likelihood that an adversary or potential adversary would obtain it.” Id. at *9. Clients who regularly employ consultants alongside their attorneys should breathe just a little easier as a result.

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