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July 24, 2014

Falling in line with the Federal Rules of Civil Procedure, the Supreme Court of Pennsylvania ordered that Rule of Civil Procedure 4003.5 be amended to reflect the incorporation of an express prohibition against the discovery of communications between attorneys and experts. The newly added language provides that a party “may not discover the communications between another party’s attorney and an expert,” regardless of whether such expert is designated for trial or specially retained during litigation. The amended rule also “protects from discovery draft expert reports and any communications between another party’s attorney and experts relating to such drafts.”

The Pennsylvania Civil Procedure Rules Committee published an explanatory comment that makes clear that one of the goals was to bring Pennsylvania practice in line with federal practice when it comes to the preparation of expert reports and the scope of expert discovery. The federal rules, however, provide certain exceptions to the general prohibition that are not contained in Pennsylvania’s amended Rule 4003.5. For example, the federal rules do not protect communications relating to an expert’s compensation, facts, data, and assumptions provided by the party’s attorney that the expert relied upon.

The practical effect will be that counsel will likely have a more active role in the preparation of expert reports. This is somewhat troubling in Pennsylvania where, unlike federal court, depositions of experts are not permitted absent agreement between counsel, or a showing of good cause.

This rule amendment comes in the wake of a recent opinion by Pennsylvania’s Supreme Court, wherein the court could not reach a consensus on the scope of the former Rule 4003.5. In Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 91 A.3d 680 (Pa. April 29, 2014), the court found there should be “a bright-line rule denying discovery of communications between attorneys and expert witnesses.” The Court explained that “while some documents might solely contain an attorney’s mental impressions and legal theories, most correspondence between counsel and an expert witness will necessarily entail substantial overlap and intermingling of core attorney work product with facts which triggered the attorney’s work product…. We conclude that attempting to extricate the work product from the related facts will add unnecessary difficulty and delay into the discovery process.” In resolving an inherent tension between rules relating to expert discovery, the Court found it preferable to err on the side of protecting attorney work-product by creating a bright-line rule.