By: Tom On: July 10, 2019 In: International Service of Process, Legal Discovery Comments: 0
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When opposing counsel challenges service of process, we at Legal Language Services (LLS) advise attorneys on how to respond to a motion to quash that service. At LLS, we also advise attorneys on how to conduct overseas discovery.

An important question is whether these communications are privileged.

On June 18, 2019, the Pennsylvania Supreme Court Western District in BouSamra v Excela Health[1] addressed this very question when they examined the nature of attorney-vendor communications.

An Overview of the Case

This case is based on the competition between two groups of cardiologist specialists – Dr. George R. BouSamra and Excela Health — during which each publicly disparaged the other’s clinical abilities.

Subsequent investigations performed by Excela Health found that BouSamra had performed unnecessary invasive procedures. The BouSamra group resigned its privileges from Excela under a cloud.

Anticipating negative publicity from the outcome of its investigation, Excela hired a public relations consultant (PRC) who communicated with Excela’s Senior Vice–President. The outside counsel recommended that Excela publicly disclose its finding concerning BouSamra. At a subsequent press conference, Excela did make such a disclosure.[2]

BouSamra Files Suit Against Excela and Demands Documents be Produced

BouSamra responded by filing an action against Excela that sought

damages for, among other things, defamation and interference with prospective and actual contractual relations. During discovery, Excela created a privilege log; which included email from outside counsel to [inside counsel], which [inside counsel] forwarded to Excela management-level personnel and [the PRC], who in turn forwarded it to other [PRC] employees.

BouSamra then filed a motion to compel Excela to produce these documents. Excela responded by claiming that both the attorney-client privilege (ACP) and the Work Product Doctrine (WPD) protected such disclosures.

Special Master & Trial Court are at Odds

After a Special Master conducted in camera review of the documents, the Special Master ruled that “Excela had not waived any privilege which would render the documents discoverable.”

The trial court, however, overruled the Special Master, reasoning that

the communications between counsel and a third party are generally not protected by the attorney-client privilege; … [and] the privilege is lost when a protected communication is shared with a third person. Although the court did recognize that an exception may exist where a third party is acting as an agent of a lawyer and is facilitating the lawyer’s representation, the court held that exception was inapplicable because [the PRC employees] were not agents of the defendants’ counsel.[3]

The court added that the PRC’s communications “would not in any way assist counsel in giving such legal advice.”[4]

Trial Court Examines Applicability of Attorney-Client Privilege

Next, the court considered whether communications between inside and outside counsel were protected by ACP.

The trial court concluded that because these communications were either cc’ed or forwarded to the PRC, Excela had waived the ACP because – again– the PRC “did not assist outside counsel in providing legal advice.”[5]

BouSamra then filed an appeal concerning the following issues:

  1.  Did the Superior Court commit an error of law when holding that a client waives the work-product protection of its counsel’s pre-litigation e-mail by forwarding the e-mail to its public relations consultant?
  2.  Did the Superior Court commit an error of law when holding that, to qualify as a privileged person within the attorney-client privilege, a third party must provide legal advice and have the lawyer or client control its work?

After the Court stated that this appeal was about “questions of law over which our standard of review is de novo and our scope of review is plenary,”[6] the court observed that it had “not yet articulated the proper analysis for waiver of the attorney work product doctrine.”[7]

Other courts tasked with “shaping a principled waiver analysis of the work product doctrine first consider the purpose of the privilege, because when the purpose is no longer being furthered, the privilege must yield to the truth seeking process.”[8]

Trial Court Examines Applicability of the Work Product Doctrine

The court then briefly reviewed the scope and applicability of the WPD:

A party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions.

. . .

The essential purpose of the Rule is to keep the files of counsel free from examination by the opponent . . . Documents, otherwise subject to discovery, cannot be immunized by depositing them in the lawyer’s file. The Rule is carefully drawn and means exactly what it says. It immunizes the lawyer’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories, nothing more.

The purpose of the work product doctrine is to protect

the mental impressions and processes of an attorney acting on behalf of a client, regardless of whether the work product was prepared in anticipation of litigation. Work product protection provid[ed by] Rule 4003.3 makes clear that work product protection is not confined to materials prepared in anticipation of litigation.[9]

Waiver Analysis for ACP & WPD Differ

Importantly, “the same standard of waiver for both the attorney-client privilege and work product protection are sometimes conflated.”

Because the ACP and WPD are different, the waiver analysis for each rule necessarily diverges as well.

Whereas disclosure to a third party generally waives the attorney-client privilege, the same cannot be said for application of the work product doctrine because disclosure does not always undermine its purpose. As the purpose of the doctrine must drive the waiver analysis, we hold that the work product doctrine is waived 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. This waiver rule comports with the prevailing view in state and federal courts across the country, and the rule’s fact intensive structure requires evaluation on a case-by-case basis.[10]

According to the court, the critical inquiry in this case is whether the disclosure was “inconsistent with the maintenance of secrecy from the disclosing party’s adversary.”

In this case, the factual record is insufficient to conduct a waiver analysis. Accordingly, we remand to the trial court for factual findings and application of the newly articulated waiver analysis as it is not an appellate court’s function to engage in fact finding.

Does Attorney-Client Privilege Protect the Documents in Question?

The court then turned to the second issue for review; i.e, whether the attorney-client privilege protects the documents in question.

In the United States v. Kovel,[11]

a law firm hired a former Internal Revenue Service agent to assist an attorney in the provision of legal advice to a client who was being investigated for income tax violations. Kovel, the former IRS agent, was subpoenaed and asked about communications he had with the client during the client’s conversations with the attorney and Kovel. Kovel refused to disclose any communications and was eventually held in contempt of court. On appeal, the Second Circuit vacated Kovel’s sentence. Holding that the attorney-client privilege protected the communications between the client and Kovel, the court compared Kovel’s expertise as an accountant to a third party interpreter. Accounting concepts are a foreign language to some lawyers in almost all cases, and to almost all lawyers in some cases. Hence, the presence of an accountant, whether hired by the lawyer or by the client, while the client is relating a complicated tax story to the lawyer, ought not destroy the privilege . . . [because] the presence of the accountant is necessary, or at least highly useful, for the effective consultation between the client and lawyer which the privilege is designed to permit. . . . What is vital to the privilege is that the communication be made for the purpose of obtaining legal advice from the lawyer.[12]

In this case, Excela asserts that the PRC played a similar role to the accountant in Kovel.

A party claiming a communication is privileged

must set forth facts showing the privilege was properly invoked. In this regard, the moving party must prove four elements:

1) [t]he asserted holder of the privilege is or sought to become a client

2) [t]he person to whom the communication was made is a member of the bar of a court, or his subordinate

3) [t]he communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort

4) [t]he privilege has been claimed and is not waived[13]

Upon that showing,

the burden shifts to the party seeking disclosure, which must explain why the communication at issue should not be privileged. Where, as here, the client is a corporation, the attorney-client privilege “extends to communications between its attorney and agents or employees authorized to act on the corporation’s behalf.” … The administration of the attorney-client privilege in the case of corporations, however, presents special problems. As an inanimate entity, a corporation must act through agents. A corporation cannot speak directly to its lawyers. Similarly, it cannot directly waive the privilege when disclosure is in its best interest. Each of these actions must necessarily be undertaken by individuals empowered to act on behalf of the corporation.[14]

Under the nonbinding authority of Kovel,

some Pennsylvania courts have extended the attorney-client privilege to third parties; specifically, agents of the client or lawyer. See Commonwealth v. Noll, 662 A.2d 1123, 1126 (Pa. Super. 1995). In Commonwealth v. Noll, Noll was involved in a motor vehicle accident which resulted in the death of a passenger in the other vehicle. Noll hired an attorney to represent him in a prospective civil suit. The attorney subsequently hired an accident reconstruction expert. As a result of the expert’s findings, Noll elected not to pursue a civil action. Subsequently, the Commonwealth hired the exact same expert to investigate the accident, which led to the Commonwealth charging Noll with homicide by vehicle. Noll filed a motion in limine, arguing that the expert’s testimony should be precluded from trial. The trial court agreed, and the Superior Court affirmed, reasoning:… Thus, where legal assistance is rendered by an agent of an attorney, communications are permanently protected from disclosure by the agent, the attorney, or the client, unless waived by the client. As [the accident reconstruction expert] was an agent of [Noll’s attorney] hired to assist in providing legal advice to Mr. Noll, the attorney-client privilege was not waived. . . . In the instant case, [the accident reconstruction expert] was retained by [Noll’s attorney] to investigate an incident in order to provide legal advice. Therefore, any information regarding [the accident reconstruction expert’s] investigation of the accident would be privileged.

Trial Court Rules that Attorney-Client Privilege Was Waived

Therefore, the court found that,

after careful consideration of the foregoing, we hold that Excela waived the attorney-client privilege. The email in question was sent from Excela’s outside counsel to … the Senior Vice-President and General Counsel of Excela. Thus, as a communication between Excela’s attorney and an employee authorized to act on Excela’s behalf, the email was originally a protected communication pursuant to the attorney-client privilege. But when outside counsel forwarded the email to PRC this privilege was waived when the confidential communication was shared with a third party.

In both Kovel and Noll,

the respective third parties — an accountant and an accident reconstruction expert — were privy to confidential information as a necessary means of improving the comprehension between the lawyer and client which facilitated the lawyer’s ability to provide legal advice. … In both cases, the critical fact is that the third-party’s presence was either indispensable to the lawyer giving legal advice or facilitated the lawyer’s ability to give legal advice to the client. That is not the case here. [Outside counsel] sending the email in question to PRC, after it was sent to him, did not retroactively assist either outside counsel or [outside counsel] in providing legal advice to Excela. … As a result, we hold that Excela waived the attorney-client privilege when [outside counsel], a high ranking officer permitted to act on behalf of the corporation, forwarded a privileged communication to [the PRC], a third-party.[15]

The Takeaway

Distilled to its essence, this case holds that WPD applies to a communication with a legal consultant or vendor when the advice provided to the attorney is “either indispensable to the lawyer giving legal advice or facilitated the lawyer’s ability to give legal advice to the client.”

International service of process and the taking of evidence abroad are both associated with specialized procedures, which few attorneys have any real experience with. At LLS, however, such advice is provided by attorneys who have years of experience in these fields.

Accordingly, the WPD protects communications between an attorney and LLS for matters dealing with international service of process or the taking of evidence abroad.

How Legal Language Can Help

If you require assistance with international service of process or evidence taking abroad, contact LLS today for professional, secure help.

Call us today at 1-800-755-5775 or simply fill out our free quote form.

[1] No. 5 WAP 2018
[2] Excela Health Press Release, Excela Health Launches Medical Necessity Review of
Coronary Stent Procedures, March 3, 2011.
[3] Citations omitted.
[4] The court’s opinion was upheld by a unanimous panel of the Superior Court affirmed. BouSamra v. Excela Health, 167 A.3d 728 (Pa. Super. 2017).
[5] United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).
[6] In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014).
[7] See LaValle v. Office of Gen. Counsel, 769 A.2d 449, 460 n.16 (Pa. 2001).
[8] In re Chevron Corp., 633 F.3d 153, 165 (3d Cir. 2011); Fisher v. U.S., 425 U.S. 391, 403 (1976).
[9] Citation and footnotes omitted.
[10] Id.
[11] 296 F.2d 918 (2d Cir. 1961)
[12] Citations and footnotes omitted.
[13] Id.
[14] Id.
[15] Id.

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