Tuesday, November 29, 2011

Attorney-Expert Correspondence Not-So-Discoverable After All

In September 2010, the Superior Court of Pennsylvania surprised attorneys across the state by holding that correspondence between an attorney and an expert witness who the attorney intends to call at trial is discoverable. The case was Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity. The decision was extremely unpopular in some circles, and the Superior Court abruptly withdrew the decision for reconsideration about a year ago.

Last Wednesday, the Superior Court issued its eagerly anticipated opinion on reconsideration... a complete 180:
[W]e hold that [a party's] subpoena seeking documents from [the opposing party's] expert witness was beyond the scope of Pa.R.C.P. 4003.5, without first showing cause as to why such a discovery request was needed. Furthermore, the written communication between counsel and an expert witness retained by counsel is not discoverable under the Pennsylvania Rules of Civil Procedure to the extent that such communication is protected by the work-product doctrine, unless the proponent of the discovery request shows pursuant to Pa.R.C.P. 4003.5(a)(2) specifically why the communication itself is relevant. As such, we also hold that Pa.R.C.P. 4003.3 immunizes from discovery any work product contained within the correspondence between [the attorney] and [the expert witness].
Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 2011 PA Super 251 (Pa. Super. Ct. Nov. 23, 2011). I think there will be quite a few Pennsylvania attorneys (and expert witnesses) breathing a sigh of relief.

This time around, the split was 8-1 (and even the "1" was a concurring in part).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.