The Pennsylvania Rules of Civil Procedure are modeled after their federal counterparts and share much of the same language. Both contain provisions codifying the attorney work-product doctrine, and both use the phrase “prepared in anticipation of litigation” in defining the scope of this privilege. Despite this seemingly similar language, however, a stark distinction has emerged between the two.
Specifically, in the Federal Rules of Civil Procedure, this language affirmatively requires that materials be prepared in anticipation of litigation for them to be privileged. In contrast, as the Pennsylvania Supreme Court recently recognized, this identical phrase in Pa.R.C.P. 4003.3 does not impose such a requirement. See BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019).
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