In Pennsylvania’s state courts, practitioners have long juggled the obligation to provide detailed, comprehensive expert reports in support of their case with their obligation to preserve the protection afforded by the attorney work-product privilege. This balancing act was required out of a concern that draft reports could be discoverable or that an attorney’s insights into a case could be disclosed through an inquiry into the report drafting process.
In its Nov. 23 opinion in Barrick v. Holy Spirit Hospital , the Pennsylvania Superior Court noted attorneys often employ “elaborate measures to avoid creating a discoverable record” in the report writing process.The Barrick decision ends the need for such elaborate measures by creating broad protections for communications between an attorney and his or her litigation experts under the provisions of the Pennsylvania Rules of Civil Procedure governing discovery and extends work-product protections to exchanges between attorneys and experts.
