Attorneys must communicate with expert witnesses to define the scope of the engagement, to prepare for trial, and to evaluate the evidence. Depending on the jurisdiction, some or all of that communication may be protected from disclosure pursuant to the attorney work-product doctrine. In Barrick v. Holy Spirit Hospital, the Pennsylvania Supreme Court considered the extent of the privilege in this context and reached a bright-line rule in favor of non-disclosure.
Barrick involved a personal injury lawsuit relating to a defective chair that collapsed in a hospital cafeteria. The defendants served a subpoena to obtain all records from the plaintiff’s orthopedic surgeon, who was expected to testify at trial. On the advice of the counsel, the surgeon withheld records that were not created for treatment purposes. The defendants filed a motion to enforce the subpoena, which the plaintiffs contested on the basis that it contained privileged communications between counsel and an expert witness.
The trial court enforced the subpoena. On appeal, the plaintiffs argued that they should not be required to disclose records beyond those developed for diagnosis and treatment, and that letters and emails exchanged between counsel and the expert were protected from discovery insofar as they were prepared in anticipation of litigation. The Superior Court agreed and struck the subpoena as it pertained to communications.
On April 29, the Pennsylvania Supreme Court affirmed the Superior Court and adopted a bright line rule that communications between an attorney and an expert are privileged because they are necessarily intertwined with the attorney’s work-product.
Although the Pennsylvania Supreme Court favored a bright line rule in favor of non-disclosure, other jurisdictions are split as to whether communications between attorneys and testifying experts are privileged. In fact, some federal courts have recognized a bright line rule in favor of discovery of expert communications, even if they encompass the mental impressions of attorneys. It is therefore critical that attorneys understand the scope of discovery in the particular jurisdiction in which they practice. Failure to do so could lead to inadvertent disclosure of work product and possibly compromise a litigant’s strategy at trial.