New rule on discovery of attorney-expert relationship
The Pennsylvania Supreme Court recently adopted a change to Rule 4003.5 which explicitly prohibits discovery of communications between attorneys and their experts. The new change, which was triggered by the Barrick case which we handled, goes into effect on August 9th of this year.
The previous version of 4003.5 was silent on the issue of whether attorney-expert communications were discoverable, but we took the position in the Barrick case that the silence meant that such communications were non-discoverable. We also argued that those communications were protected from disclosure by the work-product privilege under 4003.3. We won the case in the Superior Court by an 8-1 margin, and then an equally divided Supreme Court affirmed that ruling in April of this year.
While our Barrick case was working its way through the appellate courts, the Supreme Court’s Civil Procedural Rules Committee, in light of Barrick, recommended a Rule change to 4003.5 that would explicitly prohibit discovery of those communications. That recommendation sat on the desk of the Supreme Court for nearly two years and indeed, I wrote an article just a few weeks ago urging the Court to adopt it. (See Pa. Law Weekly, June 27, 2014). I am pleased to report that finally the Supreme Court did exactly that on July 10, 2014, when they adopted the Rule change verbatim.
In my view, the new Rule is a positive change which is long overdue. Simply put, there was far too much mischief and too many collateral battles generated over attempts to discover letters, draft reports, and e-mails going back and forth between experts and the attorneys who retained them. All this arguing led to increased discovery disputes and it impeded the sort of candid exchange of information with an expert that a lawyer needs in order to accurately access the strength or weakness of their case.
Our state court finally recognized what the federal courts realized a few years earlier when a similar change was made to Federal Rule 26. Virtually every bar group in the country representing the entire spectrum of civil litigants (e.g. plaintiffs, defendants, government, civic, corporate) supported the federal rule change. Not a single organized bar group spoke out saying that there should be discovery of such communications. That speaks volumes about the wisdom of our new state Rule.
I will be participating in a PAJ telephone seminar on this new Rule on August 19. Registration is available at www.pajustice.org, click on the CLE tab.