The Pennsylvania Supreme Court has put to rest any arguments that can be made for the disclosure of attorney communications with expert witnesses or draft reports. First there was the Barrick case, which I previously posted on. The Pa Superior Court found that the communications were not discoverable. That ruling was brought into question when the Pa Supreme Court granted allocator. However, the Court affirmed the Pa Superior Court this past April and found that those communications were not discoverable.
Now, to completely shut the door the Pa Supreme Court has issued an order amending Pa rule of civil procedure 4003.5 which deals with discovery of expert testimony and reports. Pursuant to the amendment the Court added the following language:
"A party may not discover the communications between another party's attorney and any expert who is to be identified pursuant to subdivision (a)(1)(A) or from whom discovery is permitted under subdivision (a)(3) regardless of the form of the communications, except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law. This provision protects from discovery draft expert reports and any communications between another party's attorney and experts relating to such drafts"
So, unlike Federal Court, in Pennsylvania Courts, you cannot obtain copies of correspondence with an expert or a copy of any of their draft reports. It is a good rule and protects the candor and the relationship between counsel and experts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
