New Rule 4003.5 Protects Expert-Attorney Communications

The case of Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 91 A.3d 680 (Pa. 2014), threw a wrench into the usual course of business for attorneys when dealing with experts.  In Barrick, the defendant served a subpoena on the plaintiff’s treating orthopedic surgeon seeking to obtain the surgeon’s entire file, including communications between the doctor, who was plaintiff’s expert witness, and the plaintiff’s attorney.  The doctor had authored narrative reports and communicated with the plaintiff’s attorney about the report and the contents thereof, including discussions about strategies and how to address certain issues.  The trial court enforced the subpoena upon defendant’s petition, requiring that what what the attorney and doctor believed were confidential communications be produced in discovery.  A panel of the Superior Court upheld the trial court’s decision, finding no basis for privilege and no preclusion of the discovery in the Rules of Civil Procedure.  The Superior Court en banc, however, reversed the trial court, finding that expert discovery as contemplated in the Rules of Civil Procedure does not extend to communications between the attorney and the expert as the Rules only permit discovery of the bases of the expert’s opinion and the opinion itself.  The en banc panel also held that communications between counsel and an expert witness are generally protected by the attorney work-product doctrine because such communications include mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research, or legal theories of the attorney.

On appeal to the Supreme Court, six justice considered the issue, with the seventh abstaining.  The justices split evenly on the issue – three to three.  Without a majority decision from the Supreme Court, the Superior Court’s en banc opinion stood, but under a cloud that expert-attorney communications may be subject to disclosure upon good cause shown or that a different composition of the Supreme Court could result in further requests for these communications.

In order to establish a bright line rule that advised all litigants of the permissible scope of discovery of expert materials and communications, the Supreme Court Procedural Rules Committee proposed amendments to Rule 4003.5, which relates to expert discovery.  The proposed amendments passed, with only Justice Saylor noting his dissent.  The new Rule took effect on August 9, 2014, and provides as follows:

(4) A party may not discover the communications between another party’s attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law.  This provision protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts.

The Rule is similar to the recently amended Federal Rules of Civil Procedure, but does not contain the specific exceptions set forth in the federal rule related to compensation, facts or data provided to the expert by counsel, and assumptions provided to the expert by counsel and relied upon by the expert.  The Pennsylvania Supreme Court did not deem these exceptions necessary in Pennsylvania, as Pennsylvania already has rules in place addressing the exceptions.