By Thomas G. Wilkinson, Jr. and Thomas M. O’Rourke
In 2010, the Federal Rules of Civil Procedure were amended to address certain problems with prior expert discovery rules which were interpreted to allow discovery of virtually all communications between attorneys and their retained experts. To combat rising discovery costs and ensure that attorneys and experts could speak candidly, the Federal Rules struck a compromise. Rule 26(b)(4)(C) was added to extend work product protection to communications between attorneys and their retained experts, except to the extent the communications: (i) relate to the expert’s “compensation[;]” (ii) identify “facts or data” the expert considered; and (iii) identify “assumptions” that the expert relied upon in forming the opinion at issue. Outside of these exceptions, attorney-expert communications are generally off limits.
The Pennsylvania Supreme Court has yet to weigh in on whether the work product doctrine protects attorney-expert communications. Currently, however, the Court has pending before it an appeal and a proposed amendment to the Rules of Civil Procedure that will likely determine whether such communications will be discoverable in Pennsylvania.
The Appeal – Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity
The Supreme Court has granted review in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 2012 WL 3791328 (Pa. 2012), a personal injury case that raises significant questions about the scope of Pennsylvania’s work product doctrine. In Barrick, the Defendants served a subpoena upon Plaintiffs’ medical expert, requesting all relevant medical files. When certain records were withheld, Defendants filed a motion to enforce their subpoena. In response, Plaintiffs asserted that the subpoena exceeded the permissible scope of expert discovery and sought protected work product.
After an in camera review, the trial court described the documents as “correspondence” between Plaintiffs’ counsel and the expert that involved “discussion of the factual background of the case and the circumstances under which the plaintiff suffered injury.” The court held that, despite the need to protect work product, “where an expert is being called to advance a plaintiff’s case in chief and the nature of the expert’s testimony may have been materially impacted by correspondence with counsel, such correspondence is discoverable.”
A panel of the Superior Court affirmed, adopting the bright line rule articulated by the trial court. Plaintiffs, however, filed an application for re-argument en banc, which was granted. In an 8-1 decision, the Superior Court parted with the panel’s decision and reversed the trial court, holding that: (1) Defendants’ subpoena was beyond the scope of expert discovery provided under Rule 4003.5; and (2) the attorney-expert communications sought included protected work product under Rule 4003.3. While the Superior Court acknowledged that an “in camera review” may be necessary to determine the extent of work product involved, it nevertheless concluded that all of the communications were protected.
Judge Mary Jane Bowes filed a concurring and dissenting opinion. She agreed that Defendants’ subpoena violated Rule 4003.5, but dissented as to the majority’s work product analysis. She reasoned that the majority’s “blanket protection of all correspondence between the attorney and his expert[,]” including all properly discoverable material included therein,” fails to serve “both the letter and the spirit” of Rule 4003.3.
The Pennsylvania Supreme Court agreed to consider the primary question raised by Judge Bowes: “Whether the Superior Court’s interpretation of [Rule] 4003.3 improperly provides absolute work product protection to all communications between a party’s counsel and their trial expert?” Barrick, 2012 WL 3791328 (Pa. 2012).
The Proposed Amendment to Rule 4003.5
As Barrick was pending, the Civil Procedural Rules Committee proposed an amendment to Rule 4003.5. Absent “cause shown,” Rule 4003.5 limits expert discovery to interrogatories requesting: (1) the expert’s identity, and (2) a statement of “the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Pa. R. Civ. P. 4003.5(a)(1)-(2). The proposed amendment, if approved, would add a subsection to the Rule prohibiting discovery of “communications between another party’s attorney and any expert who … [the party expects to call as a witness at trial].” Although modeled after the federal rule, the Committee’s proposal leaves out the federal exceptions in favor of a bright line prohibition.
Drawing a Bright Line, Rather than a Compromise
The Superior Court’s Barrick decision and the Committee’s proposed amendment to Rule 4003.5 would impose a general ban on discovery of attorney-expert communications, which stands in contrast to the compromise adopted under the recent Federal Rule amendments. A bright line ban, while convenient, could significantly undermine the integrity of expert discovery and virtually preclude further inquiry into expert witness communications, even when necessary to uncover information that could lead to preclusion of the expert’s testimony.
For example, if undisclosed compensation arrangements are in fact improper or unethical, the disclosure of those concerns may never happen if the Committee’s rule proposal is adopted as is or the Barrick decision is affirmed in its entirety. As explained in Judge Bowes’ opinion in Barrick, although attorney work product must be protected, courts must also “be mindful of the equally important goal of advancing the truth-seeking process during the course of litigation.” Forbidding all discovery in this area, without even limited exception, would completely ignore this countervailing goal and lose sight of the purposes of liberal discovery.
Given that the Barrick case itself featured two opposing bright line rules, the PA Supreme Court should search for a compromise solution that furthers both the protections of the work product doctrine and the truth-seeking process.
Thomas G. Wilkinson, Jr. is a member of the firm and resident in the Philadelphia office. He is a member of the firm’s Commercial Litigation Group and heads the firm’s alternative dispute resolution practice. He concentrates his practice in business litigation, business torts, complex insurance coverage, and professional responsibility matters.
Thomas M. O´Rourke joined the firm in September 2012 as an associate in the Commercial Litigation Group. Prior to joining the firm, Thomas completed two clerkships, serving as a law clerk to U.S. Magistrate Judge David R. Strawbridge of the Eastern District of Pennsylvania from 2009-2010, and as a law clerk to U.S. District Court Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania from 2010-2012.