Communications between attorneys and their expert witnesses are currently not discoverable in Pennsylvania.

An equally divided Supreme Court of Pennsylvania held that there can be no discovery of communications between attorneys and expert witnesses in Pennsylvania. Affirming the Superior Court decision, which denied defendants’ discovery motion seeking correspondence between plaintiffs’ counsel and plaintiffs’ expert witness, the Court concluded that it was “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 Court stated that it would be very rare to find communications between an attorney and his expert that included no work product. Moreover, the Court noted that the Procedural Rules Committee, in proposing an amendment to Rule 4003.5, which would adopt this bright-line rule, explained that the current practice in Pennsylvania has already been not to seek discovery of communications between the attorney and his expert. The dissent, however, opined that correspondence containing no attorney work product should not be protected and, thus, would hold that only the portion of a communication between an attorney and his expert witness which contains attorney work product should be protected. Thus, although the rule as of this opinion is that such communications are not discoverable, the divided Court leaves open the possibility for additional jurisprudence on the issue.

Case Law Alerts, 3rd Quarter, July 2014