Friday, May 2, 2014

After SCOPA Review, Attorney-Expert Correspondence Not Discoverable

Well, it has been a long, strange trip for Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity. In 2010, the Superior Court shocked the legal community by holding that correspondence between an attorney and an expert witness the attorney intends to call at trial is discoverable.

Then, the Superior Court decided to take a second look. Upon reconsideration, in 2011, the Superior Court reversed course in an 8-1 opinion. So, such correspondence appeared to be safe . . . but, wait! What about the Supreme Court of Pennsylvania ("SCOPA" to the cool kids)!?

Well, wouldn't ya just know it? The Supreme Court decided the case this week . . . a 3-3 split! The end result is that the latest Superior Court decision (protecting the correspondence from discovery) is affirmed. You can read the opinion in favor of affirming here, opposed here, and the final order here.

If you're wondering why we have an even-numbered panel at the Supreme Court - it's because Justice Orie-Melvin did not participate (it's a long story).