Litigators in Pennsylvania can feel secure written communications with their litigation experts are protected from discovery by their adversary. Such communications were recently determined to be immunized from discovery as “attorney work product” and therefore beyond the scope of expert discovery. No longer will counsel have to undertake “elaborate measures to avoid creating a discoverable record” when it comes to the preparation of expert reports.
The Superior Court of Pennsylvania reached this conclusion in Barrick v. Holy Spirit Hosp., 32 A.3d 800 (Pa.Super.2011), where it was called upon to determine whether a defendant was entitled to obtain, in response to subpoena, not only copies of the treatment notes from the plaintiff’s treating physician/trial expert, but also communications between plaintiff’s counsel and that physician regarding strategy as to how to frame the physician’s expert opinions.
In reaching its conclusion, the court carefully evaluated the interaction between the protections of the “attorney work product” doctrine and the discoverability of the facts, opinions and grounds for each opinion to which an expert is expected to testify. (Pa.R.C.P 4003.3 and Pa.R.C.P. 4003.5.) The court recognized that while a subpoena to a treating physician is permitted, discovery regarding expert testimony is restricted to the basis for that expert’s opinion, unless a court order obtained upon the showing of good cause says otherwise.
Additionally, “attorney work product” is only discoverable when it becomes relevant to an issue in the case. The Barrick court stated that even when an attorney takes an active role in assisting with the development of an expert’s report, because a party’s case will rely upon “the opinions and analyses of the expert witness, not those of their attorneys,” the correspondence sought by the defendant was not relevant.
The parties are currently waiting for the Pennsylvania Supreme Court to decide whether it will agree to hear an appeal of the Barrick decision. The court’s decision will be particularly interesting in light of the fact that in December 2010 the Civil Procedures Rules Committee of the Supreme Court of Pennsylvania issued a proposed amendment to Pa.R.C.P. 4003.5, which governs discovery of expert testimony, but which has yet to be acted upon. In that recommendation the Rules Committee proposed adding the following language: “A party may not discover the communications between another party’s attorney and any expert who is to be identified pursuant to [this rule] regardless of the form of the communications.” Adopting this proposal would ratify the Barrick court’s decision, obviate the need for the Pennsylvania Supreme Court to hear the appeal, and leave no question that attorney/expert communications are privileged. Notably, neither the Barrick decision nor the rule proposal goes as far as the December 2010 revision to the Federal Rules of Civil Procedure, which expressly no longer requires full disclosure of draft expert reports and attorney/expert communication. However, a fair reading of the Barrick decision unmistakably implies records generated by attorney/expert communication, including draft reports, are not discoverable.