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 We live in an age when both people and transactions cross state borders more and more often. Evidence concerning what occurred in Pennsylvania is often located outside of the four corners of the Commonwealth and thus, beyond the subpoena power of Pennsylvania Courts.  This is true for all forms of litigation, not just family law.

In the past, if you needed to secure documents or depose a witness outside our borders, you had to secure something called a foreign commission.  Essentially, one filed a motion in the Pennsylvania case to be permitted to conduct discovery outside of the Commonwealth.  Your opposing parties could contest the motion here, typically on the basis that the evidence was not relevant or a mere fishing expedition.  If your relief was granted, you next hired counsel in the jurisdiction where the evidence or witness was located.  That attorney would file a miscellaneous action in the foreign court (“foreign” meaning outside Pennsylvania) specifying the needed discovery, indicating that Pennsylvania had approved pursuit of it and asking for leave to proceed in the other state.  This action would be served on the witness or records custodian outside Pennsylvania.  That person or entity had its own right to ask that the relief be denied. Again, most often that would be because they denied relevance.

Effective December 24, 2012 Pennsylvania adopted the Uniform Interstate Depositions and Discovery Act (Act No. 183 of 212: SB 79 of the 2011 Session).  This act has been adopted by 28 states (including (DE, MD, NY, VA).  The purpose is to streamline the old cumbersome procedure by making it a one-step process.  If you the litigant in Pennsylvania need evidence in New York, you will need to follow the New York statute and engage counsel in New York to actually take the discovery.  But the “permission” part of the old foreign commission rules has been abandoned as far as the Commonwealth is concerned.  Similarly, if a New York litigant wants to take discovery here the New York litigant issues a New York subpoena to the Prothonotary in the county where the witness or evidence is located.  The Prothonotary is to “promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.” 42 Pa. C.S. 5335(b). The Pennsylvania subpoena is to conform to the foreign subpoena in content and have the identity of all parties and/or counsel, if represented. The statute expressly adopts Pa. R.C.P. 4009.21-.27.

Pennsylvania parties served with such a subpoena must file for a Protective Order under Rule 4012 if they wish to oppose the request discovery.  Otherwise, the re-issued foreign subpoena (now in its Pennsylvania form) is subject to the same powers as any other Pennsylvania subpoena including the right to enforce through contempt. 42 Pa. C.S. 5337.

The statute makes clear that parties in Pennsylvania may informally comply.  The remedy is limited to subpeonae issued by any of the United States, Puerto Rico, the US Virgin Islands and the District of Columbia.

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The practice of family law has seen a shift in discovery in recent years with the increased use of social networking sites by clients. There are increasingly easy ways to access and download the histories of websites like Facebook; the implications to clients is what they thought were private comments to “friends” do not evaporate into the ether of the internet, but are, instead, discoverable and producible information which may be used at trial. I discussed this issue before on our blog and how family law lawyers are reporting a major increase in the use of online evidence at trial.

Facebook’s ability to download the entire history of the account undoubtedly offers the largest trove of discoverable information, but Twitter recently announced that they are providing a method for downloading account histories, as well. Since people often discuss every aspect of their personal life with their private – and not so private – “friends” online, these account histories are proving to be important sources of information, particularly with many Pennsylvania courts emphasizing the importance of parties fostering positive relationships between the child and other parent. Consequently, long strings of negative comments about their ex-spouse (for example) could have an adverse impact on a parent later on in a custody trial when those comments are introduced into evidence.

The advice most attorneys give to their clients using social networking sites during a case is simple: STOP. Their next advice should be not to delete anything since the Court could take an adverse view on a party destroying discoverable information. Social networking is a double-edged sword of providing a community of support to people, but also becoming a forum to defame, insult, or criticize the other side. Knowing Twitter is joining Facebook and other sites in making accounts so easily produced should give people further pause about what they say online about the other party.

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As lawyers we are commonly asked to forecast judicial outcomes.  What will a court do given a stated set of facts?  Of course, it is rare for facts to be the same in the eyes of two adverse parties but even when the facts are agreed, lawyers and judges sometimes cannot agree on the law.  Thus begins the story of Carl Barrack and his suit against Sodexho and the hospital that treated him.

This is not a family law case but the November 23 ruling of the Superior Court has implications for family law and all other forms of civil (non criminal litigation).  In this decision the Superior Court reversed itself and a prior ruling by a trial court in Cumberland County.

Carl Barrack sustains injuries when a chair he was sitting in suddenly collapsed.  He sued the business where the chair was located and the physicians who treated him.  Under rules regulating pre-trial discovery it is fairly common and understood that the defendants he sued for his injuries are entitled to secure copies of his medical records.  In this case the defendants did precisely that. The rules allows Mr. Barrack and his attorney to object any subpoena issued by other parties to the case.  In this case the demand was for all records relating to Mr. Barrack.  It was directed to the treating physician’s employer, a hospital.  Because this was fairly routine and otherwise not the subject of objection by Barrack, the hospital produced the records of the treating physicians to the extent they reflected what was Mr. Barrack’s course of treatment from the time of admission.

When it published these records in accordance with the subpoena the hospital noted that Barrack’s physician had been identified as Mr. Barrack’s expert witness concerning his injuries and that records of reports and correspondence generated between the treating physician and Barrack’s lawyer were not being produced because they were not medical records concerning treatment but expert opinions related to either the nature or extent of Barrack’s injuries.

The defendant’s were not content with this answer.  No objection to the subpoena had been filed.  Therefore, they asserted that any objection was waived and that the trial court should compel production of all records including correspondence between the expert and Barrack’s attorney.

The trial court agreed despite the argument made by Barrack’s attorney that communications between a lawyer and his client’s expert were not permitted under the law.  The matter was appealed to the Superior Court which heard the case because it involved an assertion of privilege which, if not heard could forever harm the Plaintiff’s case.

A three judge panel of the Superior Court agreed with the trial court largely on the basis that the interests of justice should permit open discovery of how expert opinions had been formed.  This was contra to wide held understandings in the legal community and certainly many lawyers and experts held candid correspondence in their files concerning how an expert opinion was received.

Because this was so controversial, the parties sought immediate review by a nine judge panel of the Superior Court.  That request was granted in November, 2010 approximately sixty days after the three judge panel of the same court affirmed the trial court.

This panel decision prompted tremendous controversy.  The prevailing view had been that communications between a lawyer and the expert witness were not subject to inspection or inquiry. Many litigation attorneys trembled in fear that communications that they had made in pending cases with experts would now be subject to scrutiny.  These letters had been written before Barrack I was decided.

The case was complicated by the fact that the expert was also the treating physician.  It is clear that the physician’s treatment records are subject to review in a case for personal injuries.  But the use of the same physician as the expert witness is more the exception than the rule in this area of practice.

The decision is Barrack II reversed the panel decision and is a strict construction of Pennsylvania Rule of Civil Procedure 4003.5. That rule strictly limits what access a party to litigation gets to another party’s expert. The entitlement set forth in the rule is to either answers to interrogatories regarding who the expert is and what is the substance of the expert’s findings or a copy of the expert’s report. Anything beyond that is secured either by agreement or through a separate court order based upon cause shown. Pa. R.C.P. 4003.5 (a)(3). Had the Supreme Court intended for litigants to secure more by right, they would have made the rule more permissive.

The argument was asserted by the defense attorneys that the plaintiff’s failure to object to the subpoena was waiver of the rights set forth under the rule. The Superior Court rejected this as well noting that when the subpoena was issued it was not clear to the party issuing it that the physician had a dual role as both treating physician and expert witness. The plaintiff was within his rights to assume that the discovery material would be limited to treatment records.

The decision is in a civil case but it has direct bearing on family law cases involving experts of all stripes. An expert report in family law is governed by the same rule as in personal injury cases.

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