The Pennsylvania Supreme Court accepts review to determine the discoverability of pre-litigation exchange of emails between attorneys and a public relations firm.

The Pennsylvania Supreme Court granted review to determine whether or not the Pennsylvania Superior Court committed an error of law in: (1) holding that a health care system client waives the work-product protection when its counsel exchanges pre-litigation emails with the health care system’s public relations consultant; and (2) determining that, in order to qualify as a privileged person within the attorney-client privilege, a third party must provide legal advice and have either a lawyer or the client control its work.

Excela Health, the health care system defendant, determined that cardiologists practicing with Excela Health were performing unnecessary stent implantation procedures. Excela sought to disclose this information to the public. Prior to disclosure, senior administration for Excela, along with its general counsel, initially determined that the health system would not be legally permitted to publically identify the names of the physicians who were performing the unnecessary stenting procedures. Emails were exchanged between Excela’s general counsel, outside counsel and a public relations firm, after which Excela decided to identify Dr. BouSamra and Dr. Morcos as the physicians who performed unnecessary stenting procedures.

Drs. BouSamra and Marcos brought suit against Excela for this disclosure and filed a motion to compel the discovery of the emails between Excela, outside counsel and the public relations firm. Excela opposed production under the work-product and attorney-client privileges. The trial court performed an in camera review, determining that sending emails to the third party public relations firm waived the attorney client privilege because the PR firm was the agent of Excela, not of Excela’s outside counsel. The trial court did not address whether or not the work product doctrine applied and entered an order in the plaintiff’s favor.

The Pennsylvania Superior Court accepted review of Excela’s appeal. The court determined that discovery was appropriate because the attorney-client privilege only attaches to the agent of a client when the agent’s presence is either necessary or useful for the purposes of the lawyer’s dissemination of legal advice. The Pennsylvania Superior Court also determined that the attorney-client privilege did not apply because outside counsel did not direct communications with the third-party PR firm. The Superior Court held that the work-product doctrine did not apply because Excela initiated communication with the PR firm, not outside counsel; therefore, the communications did not occur in order to assist counsel in preparing a case for trial.

The Pennsylvania Supreme Court has accepted review to shed light in this electronic age as to the protections afforded to e-mail communications under the attorney-client and work-product doctrines among a health care system, outside counsel and third parties, like a public relations firms.

_{Case Law Alerts, 2^nd Quarter, April 2018}

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