By Jeffrey M. Monhait
Are communications between attorneys and their retained experts discoverable? For now, the answer appears to be no, as a divided Pennsylvania Supreme Court recently affirmed a Superior Court decision “creat[ing] a bright-line rule denying discovery of communications between attorneys and expert witnesses.” Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, No. 76 MAP 2012, 2014 Pa. LEXIS 1111, at *2 (April 29, 2014).
Plaintiff Barrick brought this suit against defendants for injuries he sustained when a chair in which he was sitting collapsed in the cafeteria of Defendant Holy Spirit Hospital. Defendants served a subpoena on Barrick’s treating surgeon for all relevant medical files. The surgeon, upon advice of plaintiffs’ counsel, withheld certain documents pertaining to Barrick on the basis that they were not created for treatment purposes. Defendants filed a motion to enforce the subpoena, and plaintiffs objected on the basis that they had designated the surgeon as an expert witness. Thus, plaintiffs contended that all communications between their counsel and the surgeon were protected pursuant to Pa.R.C.P. 4003.3 and 4003.5.
The trial court conducted an in camera review, and granted defendants’ motion to enforce the subpoena. When an expert is to be called at trial to advance a party’s case in chief, the trial court concluded that opposing parties are entitled to evaluate whether and to what extent “the nature of the expert’s testimony may have been materially impacted by correspondence with counsel.”
Plaintiffs immediately appealed to the Superior Court. Initially, a panel of three judges affirmed the trial court, concluding that defendants “were entitled to discover whether the expert’s conclusions were his own or guided by Plaintiffs’ counsel.” Plaintiffs then petitioned an en banc panel of the Superior Court, which reversed, concluding that: 1) the records were beyond the permissive scope of expert discovery under Pa.R.C.P. 4003.5(a)(1); 2) defendants had failed to show “cause” under Rule 4003.5(a)(2) to obtain additional discovery; and 3) that “Rule 4003.3’s protection of work product shielded the correspondence from disclosure.”
The Supreme Court granted review on the issue of whether “the Superior Court’s interpretation of Pa.R.C.P. 4003.3 improperly provides absolute work product protection to all communications between a party’s counsel and their trial expert.” The Court, however, deadlocked, with three justices on each side. Thus, the Superior Court decision was affirmed.
Opinion in Support of Affirmance (“the Affirmance”)
According to the Affirmance, the work product protection codified in Rule 4003.3 “supports our judicial system, based on the adversarial process by allowing counsel privacy to develop ideas, test theories, and explore strategies in support of the client’s interest, without fear that the documents in which the ideas, theories and strategies are written will be revealed to the opposing counsel.” Meanwhile, Rule 4003.5 allows a party to “discover ‘facts known and opinions held by an expert’ through interrogatories.” Thus, attorney-expert communications can bring these rules into conflict.
This conflict will arise frequently, because “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.” Although the trial court could review these materials and protect work product from disclosure, the Affirmance “conclude[d] that attempting to extricate the work product from the related facts will add unnecessary difficulty and delay into the discovery process.” Discovery of redacted correspondence, followed by in camera review, would result in needless, expensive, and time-consuming litigation. “[W]e conclude that it is preferable to err on the side of protecting the attorney’s work product by providing a bright-line rule barring discovery of attorney-expert communications.”
The Affirmance also cited the proposed amendment to Rule 4003.5 that would embrace this bright-line rule. However, it took pains to note that its “consideration of the proposed amendment . . . is entirely separate . . . from the determination of the case before us.”
Opinion in Support of Reversal (“the Reversal”)
The Reversal took a straightforward position—that the rules “simply do not establish a categorical prohibition” against discovery of attorney-expert correspondence, and thus the Superior Court’s contrary decision should be reversed. The Reversal also took umbrage with the Affirmance using the case “as a vehicle to modify the existing rules.”
For the Reversal, the “truth-determining process of a trial requires meaningful cross-examination of expert witnesses,” and such cross-examination is only possible where counsel can discover, before trial, any and all information an expert relied upon. Furthermore, absent discovery of attorney-expert communications, there would be no way to investigate whether “manipulative counsel” influenced the expert’s opinions, or even wrote the expert’s report.
Rather than bar discovery of all communications between attorneys and experts, the Reversal sought to balance the broad scope of discovery with the protections afforded attorney work product. Thus, “purely factual or other information . . . that does not represent core attorney work product, although contained within communications between counsel and an expert witness, does not fall within Rule 4003.3’s protective scope.” When a communication contains a mixture of “work product and other material, both sets of policy objectives are served if that portion of the document consisting or core work product is protected, while the remainder is subject to discovery.” Since trial courts typically conduct in camera reviews to evaluate privilege assertions, the Reversal disagreed with the Affirmance that such reviews would be overly burdensome.
Lastly, the Reversal objected to the Affirmance’s consideration of the proposed rule change, arguing that an appeal is an improper vehicle to amend the rules. Rulemaking is “ordinarily prospective in nature,” and cases must be decided based on “the governing provisions in force at the time.”
The Affirmance and Reversal might agree that, in theory, where attorney-expert correspondence contains a mix of protected work product and other material, the non-work product is technically discoverable. However, the Court split on whether to allow trial courts to review, identify, and separate out the protected portions of all attorney-expert correspondence.
For now, the Superior Court’s “bright-line rule” seemingly allows attorneys to withhold all communications with their experts. However, the Court’s divided position warrants caution, as the Court may revisit this issue again in the near future, especially following the July 2013 arrival of Justice Correale Stevens to replace former Justice Orie Melvin. In any event, attorneys should continue to follow a fundamental rule of correspondence—before hitting “send,” consider the impact the email (or letter) would have upon a jury, or in a deposition.