PA Supreme Court Decision Raises New Attorney-Client Privilege Considerations for Construction Clients Working With Outside Consultants
While a recent Pennsylvania Supreme Court opinion has no direct ties to the construction industry, it still has a wide-reaching impact on Pennsylvania litigants generally, including owners, contractors, and consultants involved in construction litigation. In BouSamra v. Excela Health, the Pennsylvania Supreme Court set forth a new analysis for waiver of the attorney work product doctrine and raised new attorney-client privilege concerns relevant to construction clients dealing with outside consultants. The attorney-client privilege and attorney work product doctrine have key differences. The attorney-client privilege protects confidential communications between client and attorney from discovery, encouraging free and open communication that will enable attorneys to more effectively represent clients. The attorney work product doctrine protects any materials, or “work product,” prepared by or for an attorney in anticipation of litigation from discovery.
BouSamra involved a lawsuit filed by a cardiology practice against hospital operator, Excela Health. The dispute arose after Excela held a press conference and released information suggesting that the plaintiff’s practice had performed unnecessary procedures on patients, allegations that the plaintiff argued were false. After the plaintiff sued Excela, it was revealed that the press conference was orchestrated by a public relations firm hired by Excela and that various emails containing legal advice from Excela’s outside counsel to its in-house attorneys were forwarded to the public relations firm.
When the plaintiff sought to discover these emails in the course of litigation, a dispute arose as to whether the emails were protected by attorney-client privilege or whether the privilege was destroyed when the communications were forwarded to the public relations firm. Excela argued that privilege was not waived because the public relations firm was Excela’s agent/representative. The trial court disagreed and ordered that the emails be disclosed. However, the trial court did not address the applicability of the attorney work product doctrine. The defendants, appealing the trial court’s order, asserted that the work product doctrine and the attorney-client privilege barred discovery of the documents. The Superior Court upheld the trial court’s order, finding that Excela had waived attorney-client privilege when it shared the emails with its public relations firm. As for the work product doctrine, the Superior Court reasoned that it was inapplicable.
The Pennsylvania Supreme Court affirmed the Superior Court’s finding that Excela waived the attorney-client privilege. The Court reasoned that, at times, privileged correspondence may include a third-party where it is necessary for the lawyer to furnish legal advice or prepare for possible litigation. In BouSamra, however, forwarding the correspondence to the public relations firm was not a prerequisite to and did not aide the lawyer’s ability to provide legal advice to Excela. The Court focused on the purpose of forwarding the otherwise privileged communication, which, in this case, was management of public relations and not preparation for litigation.
Turning to the work product doctrine, the Supreme Court held 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.” In other words, the inquiry set forth by the Court is whether forwarding the email increased the likelihood that Excela’s adversary would obtain it. However, because the Court found it did not have a sufficient factual record to conduct the necessary waiver analysis, the matter was remanded to the trial court for application of the newly articulated work product waiver standard.
Although BouSamra relates to a hospital operator’s communications with a public relations firm, the Court’s holding has broad applicability, including to the construction industry. While the Court’s decision on the work product doctrine mainly raises concerns for lawyers in the course of representing clients, it also provides important guidance to both lawyers and clients when dealing with communications that include or will be sent to third parties. Virtually all construction projects of any appreciable size involve owners, contractors, and subcontractors employing an array of outside consultants, including construction managers, architects, engineers, scheduling consultants, and environmental consultants. Parties involved on a construction project must be aware of the potential that communications with their legal counsel could become discoverable in litigation, even when those communications are shared with an outside consultant with whom the party believes it has a confidential relationship. In light of BouSamra, this is particularly important when the communication does not involve a lawyer’s mental impressions, conclusions, opinions, or other correspondence, and, therefore, is potentially not protected by the work product doctrine. Likewise, a party must not assume that copying legal counsel on communications to one or more of its consultants automatically renders the communication privileged.