An even split between the Pennsylvania Supreme Court affirmed the state's Superior
Court ruling that the communication between an attorney and an expert witness is not subject to discovery.
The 3-3 ruling released on April 29 held that the work produced by a lawyer and his or her expert witness cannot be subpoenaed by opposing counsel. While the rules of discovery allow the opposing side access to an expert witness' opinions prior to trial, granting access to the communications would also give their opponents insight into the attorney's "mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theory," wrote Supreme Court Justice Max Baer.
The court reached the decision upon reviewing the case of Barrick v. Holy Spirit Hospital, in which the plaintiff, Carl Barrick, sued the hospital in 2009 after he sustained injuries when one of its chairs collapsed from under him.
The defense subpoenaed Barrick's physician for medical records, which were sent in accordance with discovery rules. However, the defense attorneys also requested access to documents created while the doctor was considered an expert witness for the plaintiff.
Barrick's attorneys declined the request, but a Cumberland County Court of Common Pleas judge ruled in favor of the defense. The order directed Appalachian Orthopedic Center to produce any and all documents including the correspondence between Barrick's lawyer and his physician.
The Superior Court reversed the ruling on appeal in 2011, saying it violated the state's rules of civil procedure by asking for privileged information without proof or just cause. The recent ruling by the Supreme Court supported the lower court's line of thinking, saying that making an attorney's impressions and court strategies open game for discovery would give them undue pressure.
"As has been observed, the work product protection supports our judicial system," wrote Baer, "by allowing counsel privacy to develop ideas, test theories, and explore strategies in support of the client’s interest, without fear that the documents in which the ideas, theories and strategies are written will be revealed to the opposing counsel. Allowing counsel to document legal theories without concern of disclosure encourages better representation of clients, which in turn benefits justice."