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ALERT: Non-discoverability of Communications Between Attorney and Expert

June 19, 2014

In Barrick v. Holy Spirit Hospital, the Pennsylvania Supreme Court granted review to consider the application of the rules of civil procedure to the discovery of communications between attorneys and expert witnesses, specifically Pa.R.C.P. 4003.3, addressing the scope of discovery and attorney work product, and Pa.R.C.P. 4003.5, governing disclosures relating to expert witnesses. In a split decision, the Court decided to affirm the Superior Court (which had overruled the trial court) and create a bright-line rule denying discovery of communications between attorneys and expert witnesses.

In the trial court, the medical expert’s practice was subpoenaed by the defendant to provide updated medical records during discovery. On advice of counsel, the doctor’s office withheld some records which related to the patient (plaintiff) but “were not created for treatment purposes” (i.e., they related to communications with plaintiff’s counsel). It is worth noting that the plaintiff did not designate the doctor as an expert witness until after the defendant moved to enforce the subpoena. In affirming the Superior Court’s decision, the Supreme Court found 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.”

*Note, the underlying cases were not handled by Zarwin Baum attorneys.

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