Pennsylvania Expands Attorney Work-Product Protection for Disclosures to Third Parties

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Jane Fox Lehman

Construction disputes frequently require companies to engage third-party consultants to analyze and opine on such issues as delays, defects in workmanship or materials, and deficiencies in payment— even before they anticipate litigation.  Construction companies should keep in mind that materials they provide consultants, and materials that consultants generate, can in certain circumstances be discoverable in any subsequent litigation of the disputes.  Companies should always be especially cautious when sharing materials that contain their inside or outside counsel’s legal advice with third parties, including consultants, as this can waive the attorney-client privilege that would otherwise protect this advice from discovery.  But companies working on Pennsylvania projects can take heart from a recent decision of the Pennsylvania Supreme Court that expands the attorney work-product protection for materials shared with third-party consultants: such materials may be protected from discovery under Pennsylvania law so long as they were not shared with dispute adversaries, or in a way that “significantly increases the likelihood” that those adversaries would discover them.