[UPDATE: On November 19, 2010, the Pennsylvania Superior Court granted en banc reargument and withdrew the opinion discussed below. Stay tuned.]

[UPDATE II: On February 24, 2011, the Pennsylvania Supreme Court decided Gillard, W. v. AIG Insurance Co., et al., No. 10 EAP 2010, which clarified an unsettled point in Pennsylvania attorney-client privilege law, namely the extent to which communications from the attorney to the client are privileged. The Supreme Court found that such communications are generally privileged the same extent as communications from the client to the attorney are privileged. A copy of the opinion is available here. I wrote more about the opinion and attorney-client privilege in insurance bad faith here.]

[UPDATE III: In November 2011, the Pennsylvania Superior Court en banc reversed the prior panel’s decision in Barrick, and held the communications with the expert were not discoverable. The opinion is discussed here.]

There’s one theory that the attorney-client privilege is a fundamental part of a functioning judicial system, an implicit right embedded in other rights like due process. Full, free and unfettered communication by an attorney to the client and to the client’s other agents, like investigators and experts, is essential.

That’s not the theory in Pennsylvania; in Pennsylvania, the attorney-client privilege is codified as follows:

Confidential communications to attorney In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

42 Pa.C.S.A. § 5928.

It’s an evidentiary privilege, and the Pennsylvania Supreme Court has repeatedly held that “evidentiary privileges are disfavored because they are in derogation of the search for truth.” If a given communication, even if made by an attorney, doesn’t fall within the scope of § 5928, it’s not privileged.

Pennsylvania courts have started to read § 5928 a bit more closely lately, finding “attorney-client privilege protects from disclosure only those communications made by a client to his or her attorney which are confidential and made in connection with the providing of legal services or advice.” Nationwide Mutual Insurance Company v. Fleming, 2007 PA Super 145 (Pa. Super. Ct. 2007)(emphasis in original). The Pennsylvania Supreme Court tried to review Fleming, but the panel imploded after too many recusals and electoral changes, leaving Fleming the law of the land, such as in this case, which held the privilege “covers only confidential factual communications from a client to her attorney. It is extended to communications from an attorney to a client only if, and only to the extent that, those communications from the attorney reveal the client’s confidential factual communications.”

The issue is up again in another case before the Pennsylvania Supreme Court; time will tell where it goes, although Justices Eakin, Baer and Todd have already lined themselves up in the Fleming camp and Justice McCaffery wrote the original Fleming opinion back when he was on the Superior Court.

4 out of 7 says the smart money is on Fleming remaining the law.

On another front, yesterday the Superior Court (in Barrick v. Holy Spirit, 1856 MDA 2009, 2010 PA Super 170) considered this rule:

discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.

compared it to this rule:

A party may through interrogatories require [ ] any other party to identify each person whom the other party expects to call as an expert witness at trial [… and to] state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

and held that the latter rule won.

All communications between an attorney and an expert witness are discoverable because:

We must assume that communications from counsel were reviewed by [the expert] in the course of his work as an expert and, therefore, he may have relied on said communications in arriving at his opinion. Appellees cannot properly defend against [the expert]’s conclusions without knowing the entire basis for his opinion.

I don’t know about that: attorneys in Pennsylvania have been defending against experts for decades without knowing the “entire basis” for his opinion.

What I do know is that the rules of evidence are so strict about experts — e.g., that latter rule also says the expert’s testimony “may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings” — that attorneys, as a matter of course, help experts draft their reports.

At first blush, it’s disturbing to hear of lawyers playing around with expert reports — like learning how sausage and scrapple are made — but there’s no way around it. How’s my expert physician, banker, accountant, journalist, pilot, or police officer supposed to know exactly where they should put magical words like “reasonable degree of medical certainty” or “substantial factor” or “reckless disregard” or the like in their report? It’s my job, not the expert’s, to ensure the expert’s testimony — while still being the expert’s own truthful testimony — conforms to the requirements of law and the needs of the case.

The expert brings their expertise, pure and unadulterated, and I mold it, like sausage, into the casing of the law.

But now I can’t do that in any sort of practical or efficient manner. Nobody can; not me, not defense lawyers, not in-house counsel. Instead, if I really want to cover myself just in case, I need to jump through hoops when talking to my expert, avoiding anything in writing, maybe making calls from payphones far from the office in the middle of the night.

It just doesn’t make sense. We all know nobody will eat sausage without the casing.

I doubt anyone on the defense side is cheering this either — as much as they would love to dig into plaintiff’s communications, few of them are ready to open Pandora’s box on their side, either. Here’s what happened when the Federal Rules were interpreted that way:

That language, and how courts intrepreted it, led to a log of unintended consequences.  There’s the litany of questions at expert depositions about every meeting the expert has had with counsel, what notes were taken, and what drafts exist.  There’s the engagement of two parallel sets of experts, with one set designated as “consulting” (that is, non-discoverable), so that attorneys can interact with at least one set of experts in peace – and then, when everything’s done, the “testifying” expert adopts the product of all that as his/her pristine report.  There’s so much gamesmanship that, in a lot of cases, the parties agree to stipulate out of this language.  Why is all this done?  Because every now and then, some lawyer screws up and the other side gets really valuable.  See, e.g., Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005), for a cautionary tale.

(See the Hexion / Huntsman debacle for a related cautionary tale; the experts there didn’t even realize they were in two separate groups.) That’s from defense lawyers, by the way. They know this is nuts; honest, efficient lawyers run substantial risks, while lawyers with ample time and money to game the system can create alternative realities to suit the discovery rules.

That’s not to say the Superior Court was wrong — as noted above, the Federal Rules had already been, in many circumstances, interpreted the same way. It’s to say the law is wrong and needs to be fixed.

Thankfully, the Federal Committee on Rules of Practice and Procedure of the Judicial Conference figured out the problem, realized that lawyers need to make the raw meat look like sausage before bringing it to court, and suggested changes to Rule 26 that go into effect in December of this year.

Now that Pennsylvania just started developing the same body of law the Federal system is trying to get rid of, it’s time to be a little proactive. What say you, Civil Procedural Rules Committee?

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