A Long History Of Excellence

Supreme Court Upholds Bright-line Rule Prohibiting Discovery of Communications Between attorneys and expert witnesses

In Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. 2014), an evenly divided Supreme Court effectively upheld a Superior Court en banc decision recognizing a bright-line rule prohibiting  discovery of communications between attorneys and expert witnesses.  This decision was followed by the December 15, 2014 formal adoption of a previously proposed amendment to Pa.R.C.P. 4003.5, governing the discovery of expert testimony and trial preparation material.  The amendment added the following new subsection (a)(4) to the Rule:

(4)  A party may not discover the communications between another party’s attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law. This provision protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts.

Presumably the Supreme Court’s rationale in adopting this new subsection to the rule is consistent with the plurality opinion in Barrick, supra, wherein the court explained that anything short of a bright-line rule would further increase already-escalating litigation costs.  According to the court’s opinion, attorneys have been adopting the costly practice of retaining two sets of experts – a non-testifying expert who works behind the scenes as a consultant not subject to discovery and one who testifies at trial and is subject to discovery.  The Court also stated that it wanted to establish a clearer guidepost than that provided by “the protracted practice of redaction followed by motions practice and/or in camera review.”  As with the practice of retaining two experts, the court opined that the process of redaction and review adds unnecessary expense to the litigation process, along with increased delay and burden on the courts.  In sum, the Barrick court concluded that attorneys must enjoy freedom of interaction and unimpeded communication with testifying experts without fear that sensitive and confidential information and case analyses will be discoverable.

The Barrick Court went on to explain that:

While some documents might solely contain an attorney’s mental impressions and legal theories, most correspondence between counsel and an expert witness will necessarily entail substantial overlap and intermingling of core attorney work product with facts which triggered the attorney’s work product, including the attorney’s opinions, summaries, legal research, and legal theories…attempting to extricate the work product from the related facts will add unnecessary difficulty and delay into the discovery process.

The Barrick decision notes that this bright-line rule is applicable even to those rare pieces of correspondence between an attorney and an expert that contains no attorney work product at all and concludes that an absolute bar will help eliminate attorneys disputing whether a piece of correspondence does, in fact, contain any attorney work product, or whether it represents one of those extremely limited and unusual exchanges between an expert and an attorney that is completely devoid of the sort of privileged material deserving of protection.

The Supreme Court’s decision, and the amendment to Rule 4003.5, both generally follow the Federal Rules of Civil Procedure in prohibiting the discovery of attorney-expert communications.  A noticeable difference between the two rules, however, is that the federal rule, while generally prohibiting discovery of communications between attorneys and experts, provides several exceptions to that prohibition, permitting the deposition of an expert he files his report,  and the discovery of several specified types of attorney-expert communications, including those that:  1) relate to the expert’s compensation for his study or testimony;  2) identify facts or data provided by the party’s attorney that the expert considered in forming his opinions;  or 3) identify assumptions that the party’s attorney provided and upon which the expert relied in formulating his opinion.  The new Pennsylvania rule recognizes no such exceptions.

It is noteworthy, however, that both Barrick, supra, and the newly amended Pa.R.C.P. 4003.5 permit expert discovery in the face of a “strong showing that the witness had been evasive or untruthful,” or, generally, “upon good cause shown.”

Important NoticeThis information is intended for general guidance only, and should not be used as a substitute for specific legal advice.  For specific legal advice applicable to your situation, you should consult an attorney of your choice.  Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied.  Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.