                            [J-80-2018] [MO: Mundy, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 GEORGE R. BOUSAMRA, M.D.                        :    No. 5 WAP 2018
                                                 :
                                                 :    Appeal from the Order of the Superior
               v.                                :    Court entered July 19, 2017 at No.
                                                 :    1637 WDA 2015, affirming the Order
                                                 :    of the Court of Common Pleas of
 EXCELA HEALTH, A CORPORATION;                   :    Allegheny County entered October 6,
 WESTMORELAND REGIONAL                           :    2015 at No. G.D. 12-003929, and
 HOSPITAL, DOING BUSINESS AS                     :    remanding
 EXCELA WESTMORELAND HOSPITAL,                   :
 A CORPORATION; ROBERT ROGALSKI;                 :    ARGUED: October 24, 2018
 JEROME E. GRANATO, M.D.; LATROBE                :
 CARDIOLOGY ASSOCIATES, INC., A                  :
 CORPORATION; ROBERT N. STAFFEN,                 :
 M.D.; MERCER HEALTH & BENEFITS,                 :
 LLC; AND AMERICAN MEDICAL                       :
 FOUNDATION FOR PEER REVIEW AND                  :
 EDUCATION, INC., A CORPORATION                  :
                                                 :
                                                 :
 APPEAL OF: EXCELA HEALTH,                       :
 WESTMORELAND REGIONAL                           :
 HOSPITAL, ROBERT ROGALSKI,                      :
 JEROME E. GRANATO, M.D., AND                    :
 LATROBE CARDIOLOGY ASSOCIATES,                  :
 INC.                                            :


                                 CONCURRING OPINION


JUSTICE DONOHUE                                      DECIDED: JUNE 18 2019

       I join in the Majority’s determination that Excela Health (“Excela”) waived attorney-

client privilege when its in-house counsel (Timothy Fedele (“Fedele”)) disseminated

confidential communications prepared by an outside attorney to a third party, Molly Cate

(“Cate”), a principal of a public relations consulting firm (Jarrard, Phillips, Cate & Hancock
(“Jarrard”)). I also concur in the Majority’s decision to adopt a test for waiver of the work

product privilege akin to that set forth in section 91(4) of the Restatement (Third) of the

Law Governing Lawyers (“Restatement”). I write separately, however, to offer what I

consider to be a significant, if not dispositive, consideration for the trial court when

applying the test adopted here on remand.

       With respect to the attorney-client privilege, the Majority correctly indicates that the

general rule is that this privilege is waived when the confidential communication at issue

is shared with a third party. Majority Op. at 23. The Majority recognizes that Jarrard was

a third party, as Cate was not an employee, officer, executive or director of Excela. Id. at

28. Moreover, no exception to the general rule applied here, as Fedele’s transmittal of

the confidential communication was not for the purpose of assisting outside counsel in

providing legal advice to Excela. Id. Fedele did not request input, advice or an opinion

on outside counsel’s work from Jarrard. Id. As a result, Fedele’s sharing of outside

counsel’s communications with Cate resulted in a clear waiver of the attorney-client

privilege.

       Turning to the issue of waiver of the work product doctrine,1 the starting point must

be this Court’s recognition in Lepley v. Lycoming County Court of Common Pleas, 393



1  The Majority indicates that 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.” Majority Op. at 14.
I take issue with this statement of the law in two respects. First, it is dicta, as our grant of
allocatur with respect to the work product doctrine was limited to the issue of its waiver,
not its scope. BouSamra. v. Excela Health, 179 A.3d 1079 (Pa. 2018) (per curiam).
Contrary to the Majority’s contention, it is unnecessary to define the scope of the work
product doctrine in order to delineate a waiver test for whatever materials are deemed to
be immune from discovery pursuant to said doctrine. The present case provides a clear
example of this point, as we have identified a waiver test without any consideration of



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whether the materials in question constitute, or do not constitute, attorney work product.
To the contrary, our grant of allocatur presumed that the documents at issue were
otherwise (i.e., absent waiver) protected by the work product doctrine. In its Opinion the
Majority makes the same presumption, as it merely announces that the documents are
attorney work product without any disclosure of the nature or contents of those documents
(including whether or not they were prepared in anticipation of litigation). See Majority
Op. at 17 n.8. As such, the Majority’s contention that we should not “declare the work
product protection waived without first determining its applicability to the facts,” id. at 13
n.5, is simply untrue, as there are no “facts” in this case upon which to do so. In sum, the
Majority’s discussion of the scope of the doctrine sheds no light on the issue of waiver of
the doctrine’s protections.
         Second, the Majority expands the work product doctrine’s protections outside of
the litigation context, such that any “mental impressions and processes of an attorney
acting on behalf of a client,” are protected without regard to whether counsel’s actions
were undertaken in anticipation of (or in connection with) litigation. Majority Op. at 14.
While this Court has never issued a definitive statement regarding the scope of the
attorney work product doctrine, on those occasions when we have commented on its
breadth, this Court has consistently reflected that it applies in connection with efforts to
defend clients against adversaries in litigation. See, e.g., Commonwealth v. Kennedy,
876 A.3d 939, 948 (Pa. 2005) (emphasis added) (indicating that the work product doctrine
“promotes the adversary system by enabling attorneys to prepare cases without fear that
their work product will be used against their clients”) (quoting Westinghouse Electric
Corporation v. Republic of the Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991)); Lepley
v. Lycoming County Court of Common Pleas, 393 A.2d 306, 310 (Pa. 1978) (“At its core,
the work-product doctrine shelters the mental impressions of the attorney, providing a
privileged area within which he can analyze and prepare his client’s case.”) (emphasis
added) (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)). Similarly, we have
indicated that the doctrine protects “the confidentiality of papers prepared by or on behalf
of attorneys in anticipation of litigation.” Commonwealth v. Williams, 86 A.3d 771, 59
n.16 (Pa. 2014) (quoting Westinghouse, 951 F.2d at 1428).
        In expanding the scope of the attorney work product doctrine well beyond the
bounds recognized by this Court to date, the Majority relies exclusively upon two cases
from our intermediate appellate courts to conclude that the “in anticipation of litigation”
language in Rule 4003.3 is inclusive rather than exclusive. Majority Op. at 14 n.6 (citing
In re Estate of Paterno v. NCAA, 168 A.3d 187 (Pa. Super. 2017) and Bagwell v. Pa.
Dept. of Educ., 103 A.3d 409 (Pa. Commw. 2014)). As explained herein, there is good
reason to question the correctness of these decisions, and without advocacy and a careful
and detailed analysis by this Court, I am unwilling to unreflexively adopt their conclusions
in dicta here. These two cases rely upon a questionable distinction between federal and
Pennsylvania procedural rules, a difference that this Court has not recognized. In
Paterno, for example, the court noted that while Rule 26(b)(3)(A) of the Federal Rules of
Civil Procedure states that a party may not discover documents and tangible things
“prepared in anticipation of litigation,” Pennsylvania’s Rule 4003.3 “does not similarly



                              [J-80-2018] [MO: Mundy, J.] - 3
A.2d 306 (Pa. 1978) that work product is “not protected against compelled disclosure by

a Constitutional, statutory, or common-law privilege[.]” Id. at 310. Instead, protection for

an attorney’s work product is set forth in Rule 4003.3 of our procedural rules as adopted

by this Court:

                 Subject to the provisions of Rules 4003.4 and 4003.5, 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 respecting the
                 value or merit of a claim or defense or respecting strategy or
                 tactics.

Pa.R.C.P. 4003.3 (emphasis added).

       On its face, the highlighted portion of the rule suggests that an attorney’s work

product may never be subject to discovery during litigation, as it does not appear to admit

to any exceptions. In practice, however, this is not the case. The explanatory comment

provides one such exception, specifically the circumstance in which the legal opinion of

an attorney becomes a relevant issue in the litigation, including for example in an action



cabin Pennsylvania’s work product privilege.” Paterno, 168 A.3d at 200. When this Court
adopted Rule 4003.3 in 1978, however, we did not recognize any intent to differentiate
our rule from its federal counterpart in this manner. To the contrary, the explanatory
comment recognizes just two distinctions from its federal counterpart: the federal rule
permits discovery of work product only upon a showing of substantial need, and our rule
distinguishes between the protections afforded to the attorney and to a party’
representative. Pa.R.C.P. 4003.3 Explanatory Comment – 1978. Accordingly, the
explanatory note does not acknowledge the distinction from federal law that the Superior
Court attempted to draw in Paterno.


                                [J-80-2018] [MO: Mundy, J.] - 4
for malicious prosecution or abuse of process in which the defense is based upon a good

faith reliance on the advice of counsel.       Pa.R.C.P. 4003.3 Explanatory Comment.

Moreover, Excela freely admits that the work product protection may be waived if it is

given “to a newspaper, putting it on a website, or otherwise widely disseminating [it.]”

Excela’s Reply Brief at 10.

       In determining when work product protections have been waived, I agree with the

Majority’s adoption of a test aligned with the one set forth in section 91 of the

Restatement.2 This provision states, in relevant part, that “[w]ork-product immunity is

waived if the client, the client’s lawyer, or another authorized agent of the client …

discloses the material to third persons in circumstances in which there is a significant

likelihood that an adversary or potential adversary in anticipated litigation will obtain it.”

Restatement § 91(4) (2000). As the Majority appropriately notes, this test has been widely

adopted and applied by federal and state courts alike. See, e.g., In re Chevron Corp.,

633 F.3d 153, 165 (3d Cir. 2011); United States v. Massachusetts Institute of Technology

(MIT), 129 F.3d 681, 687 (1st Cir. 1997); Continental Cas. Co. v. Under Armour, Inc., 537

F. Supp. 2d 761, 772 (D. Md. 2008); Kittitas Cty. v. Allphin, 416 P.3d 1232, 1243 (Wash.

App. 2018), as amended (June 18, 2018); O'Boyle v. Borough of Longport, 94 A.3d 299,




2 Subsection (2) of section 87 further defines “work product” as consisting of two distinct
types, “opinion work product” and “ordinary work product.”
       (2) Opinion work product consists of the opinions or mental impressions of
       a lawyer; all other work product is ordinary work product.
Restatement § 87(2) (2000). The present case clearly involved opinion work product.
Subsection 91 of the Restatement, however, does not distinguish between these two
types of work product when discussing possible waivers of work product immunity.


                              [J-80-2018] [MO: Mundy, J.] - 5
313 (N.J. 2014); Am. Zurich Ins. Co. v. Mont. Thirteenth Judicial Dist. Court, 280 P.3d

240, 248 (Mont. 2012).

       This test is appropriate under Pennsylvania law. Waiver of work product immunity

should appropriately be limited in accordance with the purpose of its protections, which

this Court described in the explanatory comment to Rule 4003.3 to be “to keep the files

of counsel free from examination by the opponent[.]” Pa.R.C.P. 4003.3 Explanatory

Comment – 1978.          Whereas the attorney-client privilege is designed to protect

confidentiality, the work product doctrine works to protect against disclosure to

adversaries. Id. Section 91 of the Restatement appropriately limits instances of waiver

in accordance with the essential purpose for providing the doctrine’s protections – to keep

the work product from adversaries in litigation.

       For purposes of remand to the trial court, one refinement to the test for waiver of

work product adopted here is in order. As described by the Majority, the test requires an

analysis of whether the work product is “disclosed in a manner which significantly

increases the likelihood that an adversary or potential adversary will obtain it.” Majority

Op. at 16 (emphasis added).        As such, the manner of disclosure is an important

consideration in applying the test, as disclosure must be effectuated by taking adequate

precautions to ensure that the information cannot find its way into the hands of an

adversary.   As one federal court has keenly observed, “failure to take adequate

precautions to prevent an adversary from obtaining work product information warrants

waiver because ‘[i]ndifference to such a consequence indicates that protection of the

immunity was not important to the person claiming the protection.’” Continental, 537 F.

Supp. 2d at 772 (quoting Restatement § 91 comment b); see also Chevron, 633 F.3d at




                              [J-80-2018] [MO: Mundy, J.] - 6
165 (waiver occurs only when “the material is disclosed in a manner inconsistent with

keeping it from an adversary”); MIT, 129 F.3d at 687 (“disclosing material in a way

inconsistent with keeping it from an adversary waives work product material”); O’Boyle,

94 A.3d at 313) (“The inquiry invariably devolves to an examination of the nature of the

disclosure itself.”).

       As a result, in applying the waiver test, the trial court will need to focus on whether

Fedele, when disseminating outside counsel’s work product to Cate, took any or all of the

necessary and available precautions to reduce or eliminate the likelihood that the

information could be obtained by Appellant, Dr. BouSamra.3 The manner in which Fedele



3  Respectfully, the emphasis on Fedele’s actions does not, as the Majority contends,
focus too heavily on the confidentiality of the documents or otherwise conflate the
standards of confidentiality between the work product and attorney-client doctrines.
Majority Op. at 19 n.9. To the contrary, it is the sin qua non of the waiver test that the
Majority announces today. It should be self-evident that a test measuring whether
information was “disclosed in a manner which significantly increases the likelihood that
an adversary or potential adversary will obtain it” requires a principal (if not exclusive)
focus on the manner of disclosure – namely, a careful analysis of the manner in which
the work product was disclosed to third parties, including what precautions (if any) were
taken to safeguard against the possibility that the information could fall into the hands of
an adversary.
Also, I cannot agree with the generality of the Majority’s contention that courts in other
jurisdictions have held that “depending upon the facts of a given case,” disclosing parties
may have a reasonable basis to trust that the receiving party will not disseminate the
material to others (even without instructions or a confidentiality agreement). Id. In the
only case cited by the Majority, United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir.
2010), the federal court of appeals there identified only one such “given case,” specifically
a circumstance in which the disclosing party and the recipient party have “common
litigation interests.” Id. at 141. According to the D.C. circuit court, “when common
litigation interests are present, ‘the transferee is not at all likely to disclose the work
product material to the adversary.’” Id. (quoting United States v. AT & T, 642 F.2d 1285,
1299 (D.C. Cir. 1980)). That court has defined “common litigation interests” to include
those situations in which “transferor and transferee anticipate litigation against a common
adversary on the same issue or issues.” AT & T, 642 F.2d at 1300. No such situation
would appear to be presented here, unless subsequent fact-finding discloses that Jarrard



                              [J-80-2018] [MO: Mundy, J.] - 7
disseminated the work product information will thus be an important, if not dispositive,

consideration in deciding whether a finding of waiver is in order.

       Justices Todd and Dougherty join this concurring opinion.




expected to be BouSamra’s adversary in any future litigation related to the dispute
between BouSamra and Excela.


                             [J-80-2018] [MO: Mundy, J.] - 8
