Recently the Pennsylvania Supreme Court (“PA Supreme Court”) announced that it officially amended its rule on the discoverability of attorney-expert communications, partially conforming with the December 31, 2010 Amendment to Rule 26 of the Federal Rules of Civil Procedure. The amendment to Pennsylvania Rule of Civil Procedure 4003.5 now prohibits the discovery of correspondence between an opposing attorney and their expert witness.
After conflicting decisions in the lower courts, the PA Supreme Court issued a split decision in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, regarding attorney-expert communications. Because the lower appellate court ruled that the Pennsylvania Rule of Civil Procedure provided complete work protection to attorney-expert communications, the PA Supreme Court’s split decision resulted in an automatic affirmance of Barrick.
Under the amended federal rule, attorney-expert discovery is prohibited unless those communications relate to compensation for the expert’s study or testimony, identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed, or identify assumptions that the party’s attorney provided and were used by the expert to form their opinions. The new Pennsylvania rule differs from the amended federal rule because the Pennsylvania Civil Procedural Rules Committee declined to adopt any of the three exceptions in the amended federal rule.
The PA Supreme Court’s interpretation of Pennsylvania Rules of Civil Procedure regarding discovery of attorney-expert communications now brings Pennsylvania essentially in conformity with federal rules and by approving the amendment to Pennsylvania Rule of Civil Procedure 4003.5 has created a bright-line rule denying discovery of communications between attorneys and expert witnesses.
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