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Fishing Season Is Over: After Barrick and Amended Pennsylvania Rule of Civil Procedure 4003.5, Pennsylvania Reached the Right Decision Regarding Work Product Protections Between Attorneys and Experts


The long-standing tension in Pennsylvania inherent in the competing policies promoting the truth-determining process and protecting attorney work product from discovery has finally reached resolution with regard to expert communications. Pennsylvania has turned back the clock to protecting the disclosure of attorney-expert communications by creating a bright-line rule prohibiting disclosure of those communications under Barrick v. Holy Spirit Hospital and the subsequent Pennsylvania Rule of Civil Procedure 4003.5. The new Pennsylvania rule is much more protective of attorney-expert communications, and aligns itself with both the recent amendments to the Federal Rules and many states, including Pennsylvania’s sister state, New Jersey. Although the expert discovery fishing expedition is now over, the rule does not create a complete bar to questioning experts about some of their interactions with attorneys for impeachment purposes. Proper cross-examination is still available even with the new protections under Barrick and Pennsylvania Rule of Civil Procedure 4003.5.