In a previous post, I wrote about the Barrick v. Holy Spirit decision and its impact upon discovery of communications between attorneys and experts. To summarize, the superior court reached an 8-1 en banc decision holding that communications between a lawyer and an expert witness were not discoverable. After an appeal, the Supreme Court reached a 3-3 split decision on this issue, meaning that the superior court decision was still the law in Pennsylvania.
Now, the Pennsylvania Supreme Court has officially approved an amendment to Pennsylvania Rule of Civil Procedure 4003.5 serving to prohibit discovery of all attorney-expert communications and draft reports. The amended language reads as follows:
(4) 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. This provision protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts.
It is interesting to note that the Court took the added step of specifically protecting draft expert reports from discovery in addition to communications. This amendment should serve to eliminate any remaining ambiguity in this area of the law and will ensure that attorneys can freely communicate with their experts regarding their trial strategy and the contents of expert reports without concern that these communications will be turned over to opposing counsel.