The attorney-work product doctrine takes a hit in Pennsylvania

The Pennsylvania Superior Court recently confirmed that attorneys appearing in Pennsylvania state court must always be wary that their communications with testifying experts could wind up in the hands of their adversaries. In the case of Barrick v. Holy Spirit Hospital, No 1856 MDA 2009, 2010 WL 3584461 (Pa. Super. September 16, 2010), Pennsylvania’s intermediate appellate court held that communications between an attorney and a testifying expert are not protected from discovery by the attorney work-product doctrine.

The issue in Barrick began when the plaintiff’s testifying expert refused to turn over written communications with the plaintiff’s lawyer in response to a subpoena. Defendants filed a motion to enforce the subpoena, arguing that the communications were relevant and discoverable. Plaintiff opposed the motion, arguing that the communications contained privileged attorney work-product in the form of “‘legal theories, trial strategy, and ‘tactics as to how the [expert] opinions...will be framed for the purposes of negotiation and trial.’” Barrick, 2010 WL 3584461 at *3. The trial court ruled in favor of defendants and ordered production, expressly fashioning a “bright line” rule that all attorney correspondence with a testifying expert is discoverable. See December 15, 2009 opinion by Judge Hess of the Court of Common Pleas of Cumberland County. Plaintiff immediately appealed.

On appeal, the Superior Court recognized that the issue presented a conflict between two rules of Pennsylvania civil procedure – Pa.R.C.P. 4003.3, which prohibits discovery of materials commonly referred to as attorney work-product, and Pa.R.C.P. 4003.5, which permits discovery of the facts and opinions underlying a testifying expert’s conclusions. Barrick, 2010 WL 3584461 at *4. Noting that the attorney work-product privilege “is not sacrosanct,” the Superior Court held that the “attorney work-product doctrine must yield” to the expert discovery rule. Id. at *5. The court reasoned that the defendants were entitled to discover information that would enable them to ascertain the extent to which the expert witness’ opinions were influenced by counsel. Id. Although the Superior Court arguably fell just short of fashioning a bright-line rule that all attorney-expert correspondence is discoverable, the Superior Court agreed with the trial court that an in camera inspection “would be a waste of judicial resources,” given its holding that the expert discovery rule trumps the attorney work-product privilege. Id. at 6.

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Source: DLA Piper
By: Brian M. Robinson & Jayne Anderson Risk