Supreme Court of Pennsylvania Articulates New Test for Work Product Protection Waiver

The Supreme Court of Pennsylvania recently issued its decision in the matter of BouSamra v. Excela Health, articulating a new test to evaluate whether a party has waived protection under the work product doctrine.

Underlying Dispute

The litigation stemmed from the frayed relationship between Dr. BouSamra and Excela Health, the owner of Westmoreland Hospital where Dr. BouSamra practiced. Dr. BouSamra was also a member of Westmoreland County Cardiology (“WCC”), a separately-held practice. Tensions over referrals between WCC and Excela Health led to accusations that Dr. BouSamra and other WCC physicians were performing medically unnecessary procedures.

After two independent reviews of Dr. BouSamra’s work resulted in differing conclusions regarding the necessity of procedures he conducted, Excela Health retained public relations firm Jarrard, Phillips, Cate & Hancock (“Jarrard”) to advise them on a publicity strategy. The Jarrard team, working on behalf of Excela Health, was forwarded an email chain initially shared between Excela Health’s in-house and outside counsel. The email chain was the material that Excela Health sought to protect under the work product doctrine. 

Following a press conference in which Dr. BouSamra was publicly accused of performing unnecessary procedures, Dr. BouSamra brought suit for defamation and interference with contractual relations. During discovery, Dr. BouSamra became aware of the existence of the email chain which had been forwarded to the public relations firm and attempted to obtain it.  Excela Health objected to its disclosure and requested protection under both the work product doctrine and attorney-client privilege. Dr. BouSamra filed a motion to compel, which was granted. 

The Superior Court’s 2017 Holding

Excela Health appealed, maintaining its objection to disclosure under both the attorney-client privilege and work product doctrine. The Superior Court concluded that the email chain was not covered by the work product doctrine because the doctrine is intended to protect files belonging to counsel and not the client. The court reasoned that the email chain was not protected because it is the property of Excela Health, not counsel, and because it was not sent to the public relations firm for purposes of litigation preparation. Excela Health further appealed.

The Supreme Court of Pennsylvania’s New Test

The Pennsylvania Supreme Court held that the Superior Court had improperly conflated the work product doctrine with the attorney-client privilege.  In contrast to the attorney-client privilege, the court held that the purpose of the work product doctrine is not to keep such information from everyone outside the attorney-client sphere, but instead to withhold it specifically from adversaries that could use the information to the detriment of the party originally possessing it. Thus, disclosure to third parties that are not adversaries does not undermine the purpose of the work product doctrine.

The court set forth a new test to employ when evaluating whether disclosure of attorney work product to a third party constitutes a waiver of the work product doctrine. The court held that it is waived only “when the work product is shared with an adversary or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.” The waiver analysis turns upon whether “the disclosure was inconsistent with the maintenance of secrecy from the disclosing party’s adversary.” In turn, “maintenance of secrecy” depends upon the disclosing party having a reasonable basis for believing that the recipient of the disclosure would keep such information confidential.  The court explained that the test is highly fact intensive and evaluation must proceed on a case-by-case basis.

In articulating this new rule, the court noted that its adoption brings Pennsylvania law in line with the “prevailing view in state and federal courts across the country.” Although the justices ruled that the record before them did not contain enough information to determine whether work product protection had been waived, remanding the dispute for fact-finding, the adoption of this new test appears to signal greater protection of work product in Pennsylvania.