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Legal News Divided PA Supreme Court Affirms Shielding of Attorney/Expert CommunicationsAn evenly split Pennsylvania Supreme Court recently upheld the Superior Court’s 2011 finding that the Pennsylvania Rules of Civil Procedure prohibited an orthopedic group from supplying correspondence between a plaintiff’s attorney and the physician who treated the plaintiff and then was later retained as an expert witness. The six Supreme Court justices who participated in the decision cited tension between the attorney work-product privilege scope and expert witness disclosures; however, they were divided as to whether the procedural rules supported a clearly defined—or “bright-line”—rule barring discovery of such communications. As a result, the Superior Court’s decision stands. The underlying case, Barrick v. Plaintiff appealed the decision to the Superior Court. Initially, a three-judge panel agreed with the trial court judgment. Plaintiff sought an en banc reargument and, on November 23, 2011, the Superior Court reversed the panel’s decision. Newly appointed Supreme Court Justice Correale Stevens had sat on the en banc panel and thus recused himself when the case was brought before the Supreme Court in August 2013. Justice Max Baer authored an opinion joined by Justices Debra Todd and Seamus McCafferey in support of the Superior Court’s decision. Justice Baer wrote that Pennsylvania Rules of Civil Procedure 4003.3 and 4003.5 “attempt to balance the competing policies of promoting the truth-determining process through liberal discovery but also protect attorney work product from discovery to encourage efficient and effective client representation.” As such, “it is preferable to err on the side of protecting the attorney’s work-product by providing a bright-line rule barring discovery of attorney-expert communication.” A bright-line rule is also supported by a proposed amendment from the Court’s Procedural Rules Committee to Rule 4003.5. Justice Baer highlighted this proposal for its stance that Concerning the in camera process to weed out discoverable substantive facts, Justice Baer wrote that failing to establish a bright-line rule would lead to unnecessary delay in the discovery process. “Moreover, the in camera review process could potentially result in the erroneous disclose of attorney-expert witness correspondence, which will not only invade protected core work product but, in a worst case scenario, would also constitute prejudicial error necessitating an appellate court’s grant of a new trial with all the inefficiencies, burdens, and costs attendant thereto.” Justice Thomas Saylor, writing for the dissent, disagreed and wrote that, “if a communication contains a mixture of such work product and other material, both sets of policy objectives are served if that portion of the document consisting of core work-product is protected, while the remainder is subject to discovery.” He held that the Pennsylvania Rules of Civil Procedure allow for broad discovery and “simply do not establish a categorical prohibition against discovery of all correspondence between an attorney and an expert.” |
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