In May I wrote about the Pennsylvania Supreme Court’s split decision (resulting in affirmation) on protecting the communication between attorneys and the experts working on their cases. This was an important decision for a number of reasons, but despite the affirmation of the lower court’s decision, the fact it was a 3-3 split with some dissent made it precedence, but not without some concern that another case could cause the courts to shift course again.
The Pennsylvania Supreme Court has now taken that decision one-step further and codified it as the new Rule 4003.5 of the Pennsylvania Rules of Civil Procedure. Unlike the Federal rule on attorney-expert communications, the Pennsylvania rule has no exceptions to its prohibition against producing this information. Some attorneys have cited concerns about this rule effectively making it impossible to detect manipulation of their opponent’s expert or the expert simply signing their name to a report prepared by the attorney. Nevertheless,this “bright-line rule” has gone into effect and precludes any production of communication between an expert and the attorney.
Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; firstname.lastname@example.org, and on Twitter @AaronWeemsAtty.