Pennsylvania Supreme Court Upholds Decision to Protect Communication Between Attorneys and Expert Witnesses

A split vote in the Pennsylvania Supreme Court resulted in an upholding of the state’s Superior Court ruling protecting the privacy of communications between attorneys and expert witnesses, according to a May 23 Pennsylvania Record article.

The 3-3 ruling maintained the precedent that the work produced between a lawyer and his or her expert witness cannot be subpoenaed by an opposing legal team. Had the Supreme Court voted in favor of making these communications available, the opposing legal side would be given access to insights into the “mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theory,” stated Supreme Court Justice Max Baer.

The Pennsylvania Supreme Court voted on the issue while reviewing the case of Barrick v. Holy Spirit Hospital, which involved Carl Barrick suing the Holy Spirit Hospital in 2009 after one of its chairs collapsed beneath him and injured him, according to the Pennsylvania Record.

The defense sent out a subpoena to Barrick’s physician for his medical records, the Pennsylvania Record reported. At the same time, the defense’s legal representation also requested access to documents created while Barrick’s doctor was considered an expert witness for Barrick’s case. Barrick’s attorneys declined this request, and the case eventually made its way to the state Supreme Court.

“As has been observed, the work product protection supports our judicial system,” Baer wrote in a statement, “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.”