Attorney/Expert Communications Barred From Discovery in Pennsylvania

By Joshua Fruchter, Esq
Pennsylvania, we have a problem.  On the one hand, Rule 4003.3 of the Pennsylvania Rules of Civil Procedure (the “Rules”) protects attorney work product from discovery. On the other hand, Rule 4003.5 allows for discovery of the facts known and opinions held by a testifying expert witness in advance of trial. What happens when an attorney communicates in writing with a testifying expert about the facts of a case in preparation for trial? Is that written communication absolutely protected from discovery as attorney work product (under Rule 4003.3)? Or is it fully discoverable under Rule 4003.5 to provide opposing counsel with insight into the grounds for the opinions held by the testifying expert, thereby preventing unfair surprise at trial? Might redaction of attorney work product from the communication followed by an in camera review by the trial court judge represent an appropriate middle ground?

After conflicting decisions in the lower courts, the Pennsylvania Supreme Court split evenly (3-3) on these questions in Barrick v. Holy Spirit Hospital, 2014 WL 1688447 (Pa. Supreme Court April 29, 2014).  Because the lower appellate court had ruled that Rule 4003.3 provides absolute work product protection to communications between a party’s counsel and their trial expert, the Supreme Court’s split resulted in an automatic affirmance.

The facts and procedural history in Barrick were straightforward. The plaintiff suffered serious injuries when a chair on which he was sitting collapsed in the defendant hospital’s cafeteria. After plaintiff sued, the defendants (i.e., the hospital and its cafeteria manager) subpoenaed records from plaintiff’s treating orthopedic surgeon. In response, plaintiff’s counsel advised that the surgeon had been designated as a testifying expert, and thus refused to produce certain correspondence between counsel and the surgeon as privileged work product.

The trial court granted discovery of the correspondence in part based on a concern that “the nature of the expert’s testimony may have been materially impacted by correspondence with counsel.” The court also rejected in camera review of redactions of attorney work product because it would lack the benefit of the “participation of the parties’ counsel to provide context to the documents being reviewed.” An appellate court initially upheld the trial court’s bright-line rule favoring full disclosure.

However, an en banc panel of the same appellate court later reversed the trial court, and held that the attorney work product privilege completely shielded the correspondence from discovery. An appeal of the en banc decision set the stage for a pitched judicial battle between the Supreme Court’s six justices (a seventh justice who would have broken the tie did not participate in the consideration of the case).
The competing policies were clear. On the one hand, liberal discovery rules advance the “truth-determining” goal of the American legal system by preventing unfair surprise at trial. Specifically, effective cross-examination of an expert at trial depends on pre-trial access to the information on which the expert relied in forming his or her opinion. Such pre-trial access may be especially crucial where an expert’s opinion may have been unduly influenced by counsel. Having access to communications between counsel and their testifying expert can help disclose the extent to which an expert’s testimony was colored by counsel.

On the other hand, the attorney work product privilege also furthers justice by allowing attorneys to develop and test legal theories and strategies in support of a client’s case without fear that documents incorporating these theories and strategies will be revealed to opposing counsel. Weakening this privilege in connection with communications between counsel and their experts might, among other things, make the interaction between counsel and their experts less efficient (to the detriment of the client’s case), while also forcing counsel to hire two experts, one for consultation and one for testifying at trial.

These competing policies collide most forcefully in connection with communications that contain a mixture of attorney work product and factual matters relevant to formation of the expert’s opinion. The three Supreme Court justices favoring affirmance argued that “attempting to extricate the work product from the related facts will add unnecessary difficulty and delay into the discovery process.”

Accordingly, the affirming judges favored a bright line rule protecting all communications between counsel and their testifying experts (whether from the attorney to the expert, or from the expert to the attorney). The affirming judges were not troubled by the possibility that certain communications being shielded might not include any attorney work product at all insofar as they believed such situations would be extremely rare.

The justices supporting reversal sharply disagreed. Among other objections, they accused the affirming justices of ignoring the concern of manipulative counsel who might damage the integrity of the truth finding process by presenting as independent thinking an expert opinion that, in fact, is the product of the suggestions of counsel in whole, or at least in significant part. Permitting discovery of attorney-expert communications (subject to redaction of attorney work product) would prevent such gamesmanship. Accordingly, with respect to communications that contain a mixture of both work product and factual material, the reversing justices concluded that the rule best balancing the competing policies is one that relies in the first instance on counsel to redact attorney work product from expert communications, and then provides for in camera review by the trial judge in the event of a dispute. The reversing justices rejected the view that requiring in camera reviews would be unduly burdensome and difficult.

How would you have decided the case? Given the competing policies, and your own experiences with discovery and trials, would you favor a bright line rule as advocated by the affirming justices, or a middle ground as advanced by the reversing justices?

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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