Posted on October 5, 2010 by Lisa Baird

Communications Between Attorney and Testifying Expert Are Discoverable in Pennsylvania

This post was written by George M. Linge and Natalie C. Metropulos.

Addressing an issue of first impression in Pennsylvania, the Pennsylvania Superior Court recently concluded that an attorney's communications with a testifying expert are discoverable. This important decision puts Pennsylvania law squarely at odds with the newly amended Federal Rule 26(b)(4), set to take effect December 1, 2010, which prohibits discovery of drafts of an expert's reports as well as communication between counsel and the expert. Now, as much as ever, it is critical to understand the venue-specific rules on communications with experts.

In Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, No. 1856 MDA 2009, 2010 PA Super 170 (Pa. Super. Sept. 16, 2010), Carl Barrick claimed to be injured when the chair he was sitting on in a hospital cafeteria collapsed. Barrick was treated by Dr. Thomas Green, whom plaintiff’s counsel also identified as an expert. In discovery, plaintiff’s counsel produced the medical treatment records but, citing the privilege afforded attorney-work product, refused to produce communications between plaintiff’s counsel and Dr. Green. Following an in camera review, the trial court concluded that the communications between counsel and the expert were discoverable.

On appeal, the Pennsylvania Superior Court affirmed, finding that “if an expert witness is being called to advance a party’s case-in-chief, the expert’s opinion and testimony may be impacted by correspondence and communications with the party’s counsel; therefore, the attorney’s work-product must yield to discovery of those communications.”  To learn more about the recognized tension between two basic state rules of discovery in this case: Rule 4003.3, which limits the scope of production of an attorney’s trial preparation materials; and Rule 4003.5, which permits “discovery of the facts known and opinions held by an expert” that are “acquired or developed in anticipation of litigation or for trial," read our full alert.

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Posted on October 6, 2008 by Lisa Baird

New Evidence Rule 502: Inadvertent Waiver Of Attorney-Client Or Work Product Material

This post was written by Matthew R. Sheldon and Alexander "Sandy" Y. Thomas.

On September 19, 2008, President Bush signed into law the long-awaited Federal Rule of Evidence Rule 502; “Attorney-Client Privilege and Work Product; Limitations on Waiver” (“Rule 502”). Rule 502 addresses waiver of the attorney-client privilege and work product doctrine in the context of disclosures to a federal agency or during a federal proceeding.

Among other benefits, Rule 502 adds some needed clarity to the question of what constitutes a waiver if privileged or work product material is inadvertently disclosed to an opponent in litigation. It also addresses the scope of a waiver and the impact such a waiver may have in other federal and state court proceedings.

Prior to Rule 502’s enactment, federal courts generally took three positions regarding the issue of inadvertent disclosure. Some courts found that only an intentional disclosure acts as a waiver, providing clients with the highest level of protection. Other courts found that any inadvertent disclosure of privileged information, regardless of a corporation’s effort to avoid such a mistake, acted as a waiver. Most courts, however, adopted a “middle ground” approach wherein an inadvertent disclosure acts as a waiver only if the disclosing party was careless in disclosing privileged information and failed to request its return in a timely manner. Rule 502 mirrors the middle ground approach in many respects.

While adding clarity to the thorny issue of inadvertent disclosure, it remains to be seen if Rule 502 will have a substantial impact on litigation practices, especially in the context of electronic discovery. The principal purpose behind Rule 502 is to lower litigation costs associated with discovery by, among other things, reducing the potential impact of an inadvertent disclosure. As long as the producing party takes reasonable precautions to prevent an inadvertent disclosure, the provisions of Rule 502 will likely protect that party from a broad subject matter waiver if the party mistakenly discloses privileged or work product material to its adversary. With this added protection, parties are expected to direct fewer resources to privilege and work product reviews (i.e., parties will rely more heavily on less-expensive electronic searches for privileged and work product information), thereby reducing litigation costs. The enactors of Rule 502 also hope that fewer discovery battles will occur, given the increased clarity in the law of waiver provided by Rule 502.

Although Rule 502 may offer additional protection to parties who disclose privileged or work product material during litigation, counsel will in many instances still choose to conduct thorough privilege and work product reviews, considering that the cost of disclosing confidential information to your adversary remains high, even if the information is subsequently returned or if a court determines that disclosure of such information does not constitute a broad subject matter waiver. In addition, discovery disputes will still likely erupt over interpreting the specific provisions of Rule 502 and what actually constitutes “reasonable steps” to protect privileged and work product material.

Of equal importance is Rule 502’s requirement that any agreement between parties regarding the disclosure of privileged or work product material must be included in a court order if it is to be effective against third parties. Thus, counsel who wish to enter into an agreement with their adversary regarding the disclosure of privileged or work product information would be wise to make sure that the agreement is reduced to a court order.

Despite some of its deficiencies, Rule 502 is a step in the right direction. Confidential information of the client will receive enhanced protection, which is a welcome development in the face of recent assaults on the attorney-client privilege and work product doctrine.
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Posted on September 26, 2008 by Lisa Baird

More On the DOJ's Revised Principles of Federal Prosecution of Business Organizations

We previously wrote about how the Department of Justice (DOJ) revised its Principles of Federal Prosecution of Business Organizations, which govern how federal prosecutors investigate, charge, and prosecute corporate crimes, including health care fraud. Reed Smith's Matthew R. Sheldon, Alexander “Sandy” Y. Thomas, and Richard D. Kelley have written more on the subject.

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Posted on September 11, 2008 by Debra A. McCurdy

Corporate Crime Prosecution Guidance

The Department of Justice (DOJ) has revised its Principles of Federal Prosecution of Business Organizations, which govern how federal prosecutors investigate, charge, and prosecute corporate crimes, including health care fraud. A number of the revisions address the area of cooperation credit, including providing that credit for cooperation will not depend on a corporation’s waiver of attorney-client privilege or work product protection, but rather on the disclosure of relevant facts. The guidelines also instruct prosecutors not to consider a corporation’s advancement of attorneys’ fees to employees when evaluating cooperativeness, and specify that the mere participation in a joint defense agreement will not render a corporation ineligible for cooperation credit. Moreover, prosecutors may not consider whether a corporation has sanctioned or retained culpable employees in evaluating whether to assign cooperation credit to the corporation.

Reed Smith's Health Industry Washington Watch blog has new posts about these guidelines as well as new FDA initiatives; Medicare DMEPOS accreditation requirements; the Medicare Part B drug CAP program; Congressional hearings and markups; OIG and GAO reports; upcoming health care industry events; and other policy developments.

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Posted on September 10, 2008 by Lisa Baird

Protection For The Attorney-Client Privilege?

In-house lawyers in many industries--including life sciences and health care--repeatedly confront hard questions about the attorney-client privilege. As Reed Smith lawyers Matthew Sheldon and Sandy Thomas explain in the PrivilEdge Newsletter, a number of recent developments warrant attention. These include "The Attorney-Client Privilege Protection Act of 2007"--pending legislation that would curb demands for waiver of the privilege during corporate investigations and a recent case addressing attorney-client privilege issues such as the "joint client" exception, protection for tax advice and internal audits, and corporate ratification of a lower-level employee's disclosure of privileged information. Their article also discusses proposed Rule of Evidence 502 (S. 2450) regarding inadvertent disclosure of privileged information. As of Monday, that bill is awaiting the President's signature.

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