Prohibition on Expert Communications Discovery Makes Sense

An article published May 20 in the Law Weekly, “Should Expert Communications Be Completely Confidential?” written by Daniel J. Siegel, suggested that the recent Pennsylvania Supreme Court decision in Barrick v. Holy Spirit Hospital, 2014 Pa. LEXIS 1111, which affirmed a bright-line prohibition on discovery of attorney-expert communications, had the virtue of simplicity but should have recognized a “just cause” exception.

As the attorney who wrote the Barrick brief and argued the case in front of the Supreme Court, I respectfully, but vehemently, disagree. On the surface, providing for exceptions to a general rule may appear efficacious, but in this particular case that is not true. When one understands the historical evolution of this issue, it is clear that a bright-line prohibition is the proper result. Indeed, in the wake of Barrick, the Supreme Court should go one step further and adopt the new Rule 4003.5 proposed by its civil procedural rules committee, which explicitly incorporates the bright-line prohibition.