The recent split Pennsylvania Supreme Court decision that created a definitive barrier to the discovery of attorney-expert communications is now officially part of the Pennsylvania Rules of Civil Procedure. The Court approved an amendment to Rule 4003.5 of the Pennsylvania Rules of Civil Procedure to promulgate the bright-line protection that shields from discovery any form of communication between lawyers and their retained experts. Such communications include draft expert reports and communications between other parties’ attorneys and the expert relating to such drafts. There is an exception, however, that permits discovery of these materials in “circumstances that would warrant the disclosure of privileged communications under Pennsylvania law.”
In writing his opinion for Barrick v. Holy Spirit Hospital, Justice Max Baer noted that the Civil Procedural Rules Committee had proposed a similar amendment to the rule that would extend the attorney work-product privilege to encompass attorney-expert communications. Just as the Barrick decision itself created controversy amongst the justices, the procedural rule amended was not unanimous. Justice Thomas Saylor, who wrote a dissent in Barrick, objected to the amendment, stating Justice Baer’s decision failed to account for attorney contributions to, and possible manipulations of, expert opinions.
Pennsylvania Rule of Civil Procedure 4003.5 goes into effect on August 9, 2014, and can be read here.