The Holy Spirit Comes in Pennsylvania.

Last year we reported on the case of Barrick v. Holy Spirit.  In Barrick, the  Pennsylvania Superior Court was faced with the question of whether correspondence between an attorney and her retained expert (which discussed case strategy) was discoverable. The Superior Court ruled that attorney/expert correspondence was discoverable under Pa.R.C.P. 4003.5(b) that requires an expert to disclose “the substance of the facts and opinions to which the expert is expected to testify” as well as “the grounds for each opinion.” This disclosure “right”, reasoned the Court, trumped the attorney work-product privilege.

A howl of protest immediately ensued and the Superior Court agreed to revisit the issue.  In a newly issued decision, the Superior Court has reversed itself.  The Court wrote that disclosure of “correspondence between an opposing party’s attorney and the expert witness retained by that party falls outside the express language of Pa.R.C.P. 4003.5(a)(1).”  The Court further wrote that because “correspondence between Appellants’ counsel and Dr. Green [the expert] constitutes attorney work product pursuant to Pa.R.C.P. 4003.3, we conclude that it is not discoverable under the Pennsylvania Rules of Civil Procedure.”  The bottom line is that attorneys can talk to their experts in peace, free from fear that their communications will become discoverable.
If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.