Contrasting Approaches to Protecting Attorney-Expert Communications
Effective December 1, 2010, amendments to the Federal Rules of Civil Procedure take effect that provide greater protection to draft expert reports and communications between legal counsel and experts. Just as practitioners in Pennsylvania may have believed that courts would provide greater protection to attorney-expert communications, however, the Pennsylvania Superior Court dashed those hopes with an opinion holding that those communications are discoverable. The Federal Rule amendments and the Superior Court’s decision highlight contrasting approaches being taken by the federal and state courts regarding an important topic and source of frustration for litigators.
Amendments to Federal Rule of Civil Procedure 26 take effect in less than one month, on December 1. The amendments protect draft expert reports submitted to legal counsel for review and communications between counsel and the expert from discovery. Although the Rule does not provide protection for discovery of the expert’s compensation, facts or data relied upon by the expert, or assumptions made by the expert in reaching his or her opinions, the Rule puts to rest concerns careful counsel constantly have over review and refinement of draft expert reports. Additionally, counsel can now communicate more freely with their expert on strategic issues related to the litigation without concern that those communications could be discovered by their opponent. The approach of the federal rule amendments makes sense, ends the kabuki dance some lawyers may engage in to avoid reviewing draft reports, and allows the expert to serve as a valuable resource of technical expertise to the litigation.
By contrast, however, the Pennsylvania Superior Court has taken the exact opposite approach and held that attorney-expert communications are discoverable. In Barrick v. Holy Spirit Hospital, the Superior Court held that the attorney-work product doctrine, which is presumably the foundation on which the federal rule amendments are based, must yield to the Commonwealth’s expert discovery rules. The Court observed that “the expert’s opinion and testimony may be impacted by correspondence and communications with the party’s counsel,” which brings those communications within the scope of the Pennsylvania requirement that an expert disclose the substance of the facts and opinions underlying a testifying expert’s conclusions. The Superior Court addressed the soon-to-be-effective federal rule amendments within a footnote, expressly “disavow[ing] any reliance” upon the Rule because it is not effective until December 2010 and the state and federal rules are materially different.
Therefore, beginning December 1, practitioners in Pennsylvania will be faced with two conflicting approaches to communications with their experts. Even though Pennsylvania substantive law may apply to a federal case, practitioners in federal court will be permitted to more fully engage with their experts and fine-tune the experts’ reports to focus on the technical issues in dispute. In state court, however, practitioners will have to continue to be wary of their communications with experts. These differing approaches are notable because the discovery of attorney-expert communications should be founded on principles of the attorney-client privilege and the attorney work product doctrine, principles on which the courts have — until now — taken a largely unified approach.