Continuing off our earlier blog post that had raised questions regarding attorney-expert communications in Barrick, et al. v. Holy Spirit Hospital, et al. (read here!), on July 10, 2014 the Pennsylvania Supreme Court made official a rule change barring attorney-expert communications during discovery. Following its decision in Barrick, the Supreme Court approved an amendment to the Pennsylvania Rule of Civil Procedure 4003.5 concerning attorney-expert communication during discovery. This amendment to the Pennsylvania Rules of Civil Procedure created a bright-line rule, and creates a difficult arena for attorneys to maneuver during the discovery process.
The new Pennsylvania rule is different from its federal rule counterpart in that unlike the federal rule, the new rule contains no exceptions to the general prohibition against discovery of attorney-expert communications. The Federal Rules, which generally prohibit discovery of attorney-expert communications, provide for exceptions to the general prohibition if the communications relate to (1) compensation for expert’s study or testimony, (2) identification of facts or data that the expert considered in forming opinions given by the party’s attorney, or (3) identification of assumptions that were provided by the party’s attorney and were relied upon by the expert. The new Pennsylvania rule contains no such exceptions. Because the federal rules and Pennsylvania rules provide for differences in the scope of discovery of expert communications, it has been determined that the latter did not provide for such exceptions. Continuing with the more stringent approach, Pennsylvania rules do not permit an expert to be deposed, unless there is cause shown.
Creating a split amongst the legal community, there exists fear that such a stringent approach would make detection of improper behavior by experts impossible. It will be interesting to see how this new amendment will be tested.