August 2014 Expert Discovery Update
The Pennsylvania Rules of Civil Procedure (“Pa RCP”), Pa. RCP 4003.5, has been amended to codify the Pennsylvania Supreme Court’s ruling in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 91 A.3d 680, 689 (Pa. 2014).
As reported here previously, the Pennsylvania Supreme Court, en banc, made a firm statement intended to bar all discovery of communications between counsel and experts. Now, the rules of civil procedure have also been modified to effect this ruling and went into effect on August 9, 2014.
Now, the newly minted Rule 4003.5(a)(4) states that a “party may not discover the communications between another party’s attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law.” The new rule goes on to say that it “protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts.” Note, that under subsection 4003.5(a)(2) further discovery beyond interrogatories may be had if there is cause, however, the tenor of the new rule and decision in Barrick make it very apparent that the court’s will not favor such an inquiry.
In Barrick, a splint panel of the Pennsylvania Supreme Court affirmed the Superior Court’s ruling that communications between counsel and an expert are privileged under Pa.R.C.P. 4003.3 and 4003.5. Finding that “Rule 4003.3 balances the general rule of expansive discovery with the deep-rooted protection of attorney work product, and that “attempting to extricate the work product [provided to an expert] from the related facts will add unnecessary difficulty and delay into the discovery process.”
The Pennsylvania Rules of Civil Procedure now are amended to reflect this holding and eliminate any uncertainty as to the scope of expert disclosure of attorney communications. To read the full rule, please click here.