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Communications between counsel and trial expert are not discoverable and are shielded from disclosure by the work-product privilege.

January 1, 2012
Barrick v. Holy Spirit Hospital, 2011 Pa. Super. 251, Filed Nov. 23, 2011

This matter involves the discoverability of communications between counsel and a trial expert regarding the manner in which the expert should frame his or her opinions or report. In September 2010, the Superior Court issued a precedential decision holding that such communications are discoverable and are not protected by the attorney work product doctrine. The Superior Court later withdrew that controversial decision and granted en banc reargument, and the case remained in limbo for the past year.

Happily, in a new decision issued on November 23, 2011, the Superior Court reversed its prior ruling and held that communications between counsel and a trial expert: (1) are NOT discoverable under Pa.R.C.P. 4003.5; and (2) ARE shielded from disclosure by the work-product privilege contained in Pa.R.C.P. 4003.3.

First, the court explained that, because Rule 4003.5(a)(1) permits the discovery of only the substance of the facts and opinions to which the expert will testify and a summary of the grounds for each opinion, "a discovery request for the content of any correspondence between an opposing party’s attorney and the expert witness retained by that party falls outside the express language of [the Rule]." To obtain discovery beyond the scope of the Rule, a party must satisfy the "cause shown" standard, which, under these facts, requires a demonstration that the correspondence between counsel and the expert is somehow independently relevant to the case (as, for instance, where a party asserts an "advice of counsel" defense).

Second, the court held that counsel's "mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research or legal theories" contained within communications between counsel and a trial expert are protected from disclosure by the work product privilege unless, again, the party seeking disclosure can demonstrate that the work product is "directly relevant to the action." In other words, the mental impressions are discoverable only where the impressions themselves, rather than the legal merits they relate to, are directly relevant to the action (think again of the "advice of counsel" defense). Barring such rare circumstances, the impressions are not discoverable.

Although this new decision is very welcome, it remains possible that the Supreme Court will grant an appeal and rule differently, and it is also possible that the new decision will be interpreted narrowly.

Case Law Alert - 1st Qtr 2012

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John J. Hare
Chair, Appellate Advocacy and Post-Trial Practice
(215) 575-2609

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