Attorney/Expert Communications Protected From Discovery

Key Points:

• Expert discovery is very limited under Pa.R.C.P. 4003.5(a)(1).
• Discovery of correspondence between attorneys and expert witnesses requires a court order.
• Mental impressions of counsel contained within correspondence to expert witnesses constitutes attorney work product.

Under Pa.R.C.P. 4003.5(a)(1), a party can submit interrogatories to any other party, requiring the opposition to identify each of their expert witnesses, state the substance of the facts and opinions to which the expert is expected to testify, and provide a summary of the grounds for each opinion. These interrogatories must be served upon the party retaining the expert as a witness, not directly upon the expert. To obtain discovery beyond this limited scope, a party must show cause and acquire a court order.

In November 2011, the Pennsylvania Superior Court reversed the trial court's decision in Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800 (Pa. Super. 2011), effectively limiting the extent of discovery regarding the communications between expert witnesses and attorneys.

In Barrick, Mr. Barrick was a patron sitting on a chair in a hospital cafeteria. The chair allegedly collapsed, causing him to sustain severe spinal injuries. Mr. Barrick sued the hospital cafeteria management company, Sodexho Management, Inc., (Sodexho), and others. Sodexho served a subpoena on Mr. Barrick's treating orthopedic physician, Dr. Green, who was affiliated with Appalachian Orthopedic Center (Appalachian). The subpoena sought medical records and the patient's file, including correspondence between Mr. Barrick's counsel and Dr. Green. Appalachian complied with the request, but refused to submit documents not related to Mr. Barrick's treatment because Dr. Green was identified by the plaintiff as an expert witness. The trial court granted the motion to enforce the subpoena, and the physician was ordered to produce correspondence between himself and Mr. Barrick's attorney. On appeal, the court initially affirmed the ruling, but on reargument, reversed the lower court.

Mr. Barrick's attorneys contended that it was an error for the trial court to order Dr. Green, who is both Mr. Barrick's treating physician and an expert witness, to disclose letters and emails between the physician and counsel that addressed the strategy regarding the physician's expert opinions. They conceded that the correspondence requested may be relevant to the expert's testimony, but such private communications are undiscoverable within the plain language of 4003.5. The attorneys also identified the adverse policy considerations resulting from discoverable draft reports and private communications of expert witnesses. Experts and attorneys would be forced to go to great lengths to avoid creating a discoverable record.

The Superior Court noted that Sodexho's subpoena sought information beyond the permissive scope of 4003.5(a)(1). A discovery request for correspondence between an expert witness and opposing counsel falls outside the express language of 4003.5(a)(1). Accordingly, 4003.5(a)(2) required Sodexho to show cause and acquire a court order before requesting the subpoenaed documents. In addition, the correspondence was not discoverable because the information was protected by the work product doctrine. Any mental impressions or legal analyses discussed by Mr. Barrick's attorneys and contained within the correspondence constituted attorney work product. Although finding that the work product doctrine is not absolute, the court ruled that this correspondence was not relevant to the action and, therefore, did not fall under any exception.

Although the court did not provide any broad opinions on what is and what is not discoverable between experts and attorneys, it did rule that any work product contained within correspondence between counsel and an expert doctor is protected from discovery. The court narrowly interpreted 4003.5(a)(1), which likely means that most communications between an attorney and an expert witness are protected. Nonetheless, it is still important to keep written recordings of conversations with expert witnesses and draft reports to a minimum as this area of the law evolves.

*Christine is an associate in our Philadelphia, Pennsylvania, office. She can be reached at 215.575.2885 or cmbecer@mdwcg.com.

Defense Digest, Vol. 18, No. 3, September 2012