The following is excerpted from a December 5, 2011 article by Gina Passarella of The Legal Intelligencer published by the Pittsburgh Post-Gazette:
In a complete reversal of course from its decision last year, the state Superior Court has ruled communications between an attorney and his expert witness are not discoverable.
The nine-judge en banc panel in Barrick v. Holy Spirit Hospital ruled 8-1 to reverse an earlier three-judge panel that had found in September 2010 such communications were discoverable.
The ruling essentially returns Pennsylvania's attorney-expert discovery methods to their original state, before the Barrick case appeared in state appellate courts. But the ruling could also have side effects; namely, a raft of unneeded discovery motions.
Judge Mundy said in her opinion that Sodexo's subpoena exceeded the scope of 4003.5(a)(1) for two reasons. First, Sodexo intended to use the subpoena to obtain records directly from an opposing party's expert witness by sending the subpoena directly to Appalachian, she said. Judge Mundy said that form of discovery is not allowed.
Second, Sodexo overreached in terms of substance because it sought information beyond the scope of 4003.5(a)(1), she said.
Read the full article here.