*1
800
Indiana,
Because the
ments, irrespective of
“similar,” I ex-
the word
employs
under seal.
statute
the contract
instrument
whether the under-seal
amine
Indiana,
Applying
376.
this
A.2d at
or note—is
it is not a bond
at issue—if
opined that
rationale,
Court
the Indiana
bond or note as to
sufficiently similar to a
akin to con-
were more
the agreements
period.
limitation
twenty-year
warrant a
under
instruments
seal than
tracts under
guaranty
a
is an instrument
my opinion,
In
four-year statute of limita-
seal,
a
and thus
“is
guaranty
bond or note. A
similar to a
applied.
tion
person
pay,”
will
undertaking
that a
A bond is
note, i.e.,
or a
written
akin to a bond
money or do
pay
promise
written
[a]
Black’s at
pay money.
promises
Cf.
occur
if certain circumstances
some act
at 1162. Al-
and id.
id.
promise
a
elapses;
a certain time
or
acknowledge
I
the differences
though
condition subse-
upon a
is defeasible
instruments,4 I conclude
among the three
by
seal
an instrument under
quent; esp.,
case,
unique
facts of this
that under
(1) a
officer undertakes to
public
which
in-
guaranty
the instant under-seal
money if
or she does
a
he
pay
sum
—an
sufficiently similar to a bond
strument —is
faithfully discharge
responsibili-
(2)
office,
that a
surety
a
undertakes
note—also instruments —such
ties of
or
so,
applies.
officer does not do
See
public
twenty-year
period
that if the
limitation
penal
Indiana,
will be liable in a
sum.
surety
Accordingly,
I
another instru- two-party negotiable
A is a note (which
ment, three-party unlike a draft is a instrument).” guaranty A Id. at 1162. and Brenda Carl J. BARRICK as follows: defined Barrick, Appellants L. payment for the promise A to answer debt, some performance or the some THE OF HOLY SPIRIT HOSPITAL in case of the failure of another duty, CHARITY, OF SISTERS CHRISTIAN (cid:127) in the first instance. who is liable Individually Doing Business as in finance term is most common Holy Spirit Hospital, Man Sodexho warranty re- banking contexts. While Inc., Operations, agement, Sodexho (not is not col- things persons), lates to Lawrence, LLC, Appel and Linda J. lateral, writing, be in and need not lees. undertaking per- that a guaranty is an act, pay will or do some is collateral son Pennsylvania. Superior Court duty primary obligor, Argued April writing.
must be in 23, 2011. Filed Nov. Id. at 773. view, my the term “instrument” is See limited the term “similar.” " Hamilton, Corporations in a long debt W. The Law example,
4. For 'bond' is a term (3d ed.1991)). security usually while a ‘note’ is a shorter Nutshell obligation.” (quoting term Id. at 202 Robert *3 Shade, Terry
Wayne F. Carlisle and S. Hyman, Harrisburg, appellants. L. Stephanie Hersperger, Harrisburg, Management, Opera- for Sodexho Sodexho Lawrence, appellees. tions and STEVENS, P.J., BENDER, BEFORE: PANELLA, BOWES, DONOHUE, MUNDY, OTT, SHOGAN, FREEDBERG, JJ. MUNDY, BY J.:
OPINION (Mr. Appellants, Carl J. Barrick Bar- rick) Barrick, L. from appeal and Brenda entered in the order Court Common County Pleas of Cumberland on October 16, 2009, motion to enforce granting the subpoena issued for Mr. Barrick’s Ap- The medical records. order directed Orthopedic (Appala- Center palachian chian) any and all produce documents Barrick, Mr. pertaining including coun- between Green, Dr. Thomas Green. Dr. sel and treating physician, who was Mr. Barrick’s Green, Appalachian. Appalachian in this action. was affiliated with is not treating physician, Mr. Dr. Thomas Barrick’s testify once the been as an had served. See designated was also (d)(2). 4009.21(c), review, In response careful we witness at trial. After 81, 2008, subpoena, on Appa- March the trial court and reverse order provided lachian with the Sodexho medical proceedings remand for consistent records of Mr. See Motion Barrick. opinion. this ¶ 6/29/09, 5; Subpoena, Enforce at C.R. pertinent procedural factual 131. Upon request, Appalachian furnished gleaned from background of this case Sodexho updated with an set medical On the certified record follows. June records for Mr. on June Barrick *4 2007, against an action Appellants filed however, In producing Appa- this update, Holy Spirit Hospital of the Sisters of noted, “[ejnclosed lachian are the medical Charity Appellees, Christian Sodexho and records and related for Inc., Management, Operations, Sodexho Mr. Barrick. records of this office Certain LLC, (collectively and Linda Lawrence So- that pertain to Mr. Barrick but were not dexho).2 According Appellants’ to com- purposes created for treatment are not plaint, spinal Mr. Barrick suffered severe E; being produced.” Id. at Exhibit C.R. 2006, 29, injuries when the chair on March Thereafter, 29, 2009, at 159. June on al- sitting collapsed on which he was beneath leging that Appalachian comply failed to Holy Spirit Hospi- him in the cafeteria of with subpoena Sodexho a request, filed ¶¶ 12/28/07, 18-25; Complaint, tal. at Cer- motion subpoena to enforce the directed to (C.R.) Green, tified Record at 29-62. Dr. Appalachian. Subpoe- Motion to Enforce orthopedic an who is surgeon affiliated na, 6/29/09; C.R. at 129-159. with Mr. Appalachian, treated Barrick for Appalachian and Appellants sepa- filed injuries sustained from allegedly this responses rate to Sodexho’s motion to en- accident. force subpoena. response In its filed 19, 2008, Ap- On March Sodexho served 9, 2009, July on Appalachian explained that palachian pursuant subpoena a Pa. Barrickj’s Dr. Green orthopedic “was [Mr. requesting “[cjomplete treating physician years” multiple and for copy of the entire medical re- chart/file “has also been retained under [Pa.R.C.P.] BARRICK, garding CARL J. DOB 4003.5 as an witness for Bar- [Mr. 97, at 100-107. After re- 7/28/61[.]” C.R. Response Appalachian’s rick.]” to Mo- ¶ notice, ceiving timely Appellants 7/9/09, 4; did not tion Subpoena, to Enforce at object service, subpoena prior to the to its at Contrary allega- C.R. 161. tions, Appellants protective Appalachian nor did that it seek order maintained “has Inc., 28, manages Management, Subpoena, 2. Sodexho and 2009. Enforce Motion to C; operates Holy Spirit Hospital 6/29/09, ¶¶6-7, 131, at cafeteria at Exhibit C.R. at pursuant manage- of a written the terms updated subpoena 147. Sodexho served an ¶ 5, 12/28/07, agreement. Complaint, ment at ¶ 10, 8, D; on June 2009. Id. at Exhibit C.R. A; Matter, 1/31/08, Exhibit Answer and New 131, at Again, 149-157. the record reflects ¶ employee at 5. Linda J. Lawrence is an Appellants objections neither filed nor Inc., Management, Sodexho works as the sought protective response to this order general manager of the nutritional services subpoena. department Holy Spirit Hospital. at Answer 1/31/08, 6;¶ Matter, and New at at 69- C.R. 23, 2009, 4. Specifically, April Dr. on Green 77. testify was retained as an witness to on Appellants 4, behalf of at trial. See May response 3. to Sodexho’s 2009 re- Enforce, 7/16/09, records, Response to Motion to quest Appala- updated medical ¶ 11; subpoena requested updated May chian C.R. at 171-172. on subpoena to enforce the directed tion responded completed [sic] fully and at 127. Appalachian. C.R. further Appalachian subpoena[.]” provide required not that it was averred 313(a), Thereafter, Ap- under Pa.R.A.P. concerning Dr. Green’s certain materials appeal on timely filed a notice of pellants because the sub- -witness role as an filed their 2009.5 October can it cover cover nor “does not poena complained errors concise statement of 1925(b) under protected [Pa.R.C.P.] materials on to Pa.R.A.P. appeal pursuant on materials) (trial preparation at 211-215. On November 2009. C.R. ¶4; Id. at C.R. at 15, 2009, 4003.5.” trial court issued [Pa.R.C.P.] December 1925(a) response filed Similarly, support in their opinion 160-161. Pa.R.A.P. its 16, 2009, “[Appellants] aver[red] 2009 order. C.R. at 231- July on its October not, 16, 2010, [Sodexhojs Then, this September does on the trial court’s order prepa- trial affirmed embrace Court permissibly, Sodexho’s motion to enforce granting 4003.3 or under Pa.R.C.P. ration materials *5 Subsequently, Appellants subpoena. in connection materials preparation trial banc, which this sought reargument en for between counsel with communications 19, granted on November 2010. Court expert wit- [Appellants’] [Appellants] for trial under Pa. in preparation nesses Herein, Appellants single raise a issue Appellants’ Response 4003.5.” for our review. ¶ 7/16/09, 11; Enforce, at C.R. Motion to below to order Is it error for the court at 172. physician, who treating [Mr. Barrick’s] expert wit- testifying will also be as his hearing August on The trial court held ness, to disclose letters and emails be- 6, 2009, to resolve the issues in order physician [Ap- tween the and counsel for to enforce the by Sodexho’s motion raised strategy that addressed the pellants] 8/6/09, N.T., 1-14. at At the subpoena. physician’s expert to how to frame the the trial court hearing, conclusion of the where all of the treatment rec- opinions af- resolution of the motion until deferred had been disclosed Barrick] ords of [Mr. camera review of ter it conducted to [Sodexho]? Dr. between pertinent Appellants’ Original Brief at 3.6 Id. at 14. Green and counsel. 2009, Then, 16, trial court Before we consider the merits of on October case, whether mo- this we must first address granting entered an order Sodexho’s Inc., 1117, Investigations, 936 A.2d permitted the trial court’s A-Plus 5. We are to review 16, (Pa.Super.2007) (stating that pursuant to 1123-1124 October 2009 order "Pennsylvania doctrine. Pa.R.A.P. courts have held that the collateral order 313(a) appeal may involving potentially (providing that confidential "[a]n orders right immediately appeal- order of privileged [a] taken as of from a collateral are materials court”). recog action”). Specifically, principal lower we [...] able as collateral to the involving privi "discovery nize that orders Rear- leged 6. In their Substituted Brief on En Banc appealable are as collat ] material [... pursuant gument, Appellants failed to include a state- principal to Pa. eral to the action required by privi questions involved as purportedly ment of the R.A.P. 313” because "once 2116(a). See also Pa.R.A.P. leged divulged, Pa.R.A.P. material is disclosure 2111(a)(4). Appellants clearly articulated the subsequent documents cannot be undone and brief, original question presented in their appellate review be rendered moot.” would Inc., 1050, recognize that defi- Elwyn, "[w]hen 1056- however. We T.M. v. (citations ability to con- in a brief hinder our (Pa.Super.2008) and internal ciencies review, omitted); meaningful appellate we Berkeyheiser quotation duct marks see ability challenge object waived their to Sodexho’s subpoena request 16, 2009 the trial court’s October order privileged merely communications be- granting Sodexho’s motion to enforce. As objection cause their was made outside the indicates, days the record least be- period prescribed time by Pa.R.C.P. serving Appalachian fore with a 4009.21(d). 10, 2009, on both March 2008 and June judice, In the case sub the nature and provided Appellants Sodexho with written context of Sodexho’s request is notice of its intent pursuant illuminating. that, deem significant We it
4009.21(a). According C.R. at pursuant to Pa.R.C.P. Sodexho di- Sodexho, receiving prescribed after no- rectly subpoenaed Mr. Barrick’s medical tice, Appellants right waived their to ob- record from Appalachian, organization (1) ject to either subpoena they because employing Mr. Barrick’s treating physi- in writing they any “indicated waived cian. See also Pa.R.C.P. 4009.1. Sodexho objections proposed subpoena” to the specifically its request limited (2) they timely “failed to file subse- “[cjomplete copy of the entire medical objections quent protec- or a motion for a regarding BARRICK, CARL J. chart/file tive as required by order Pa.R.C.P. No. DOB C.R. at 100-107. By 7/28/61[.]” 4009.21.” Sodexho’s Brief on En Banc only requesting that Mr. treating Barrick’s Reargument at 8-10. physician produce patient’s his complete Appellants respond to argu- *6 pursuant medical record to Pa.R.C.P. ment, explaining they that could not have 4009.21, Sodexho Appellant offered no in- realized Sodexho intended privileged com- dication that sought any it per- document scope munications to be within the taining to Dr. Green’s role as an expert subpoenas. Appellants’ Substituted Brief witness. While Pa.R.C.P. 4009.21 allows Reargument on En Banc n. 1. Be- parties subpoena to medical records from a subpoenas cause both specifically request- non-party treating physician, this rule does production ed of Mr. Barrick’s medical rec- not apply to pertaining to an ord, Appellants they claim were unaware Rather, expert witness. Pa.R.C.P. 4003.5 that the scope subpoena of either went exclusively controls regarding beyond the medical record of Mr. Barrick’s Thus, testimony. appro- Sodexho treatment. Id. Appellants assert that priately served subpoenas upon two Appa- “they immediately objection” filed an after pursuant lachian to only Pa.R.C.P. Sodexho filed its motion to enforce on June insofar subpoenas as the 29, 2009, sought to obtain as the motion them alerted Mr. Barrick’s medical chart from Dr. the first time to the true breadth of Sodex- Green, Thus, treating physician ho’s subpoena requests. Id. herein. relying Assoc., Hospital Consequently, Appellants on initially McGovern Service ob- (Pa.Super.2001), Appellants justifiable A.2d 1012 no served basis for objecting to argue they that ability subpoena. did not waive their either substantial, entirely appeal dismiss the or find certain record are errors that are less issues to be waived.” Irwin Union Nat. may require Bank than substantial a less severe Famous, Pa.R.A.P., remedy. and Trust Co. v. (emphasis See Rule 2101 consideration, (Pa.Super.2010) (emphasis supplied), citing supplied). Upon we determine Although Pennsylvania Pa.R.A.P. 2101. Appellants' that the found in deficiencies sub- Appellate provide Rules of Procedure that we substantially stituted brief do not hinder our
may quash appeal if ability meaningful appellate dismiss the defi- to conduct re- reproduced ciencies found within the brief or view. 4009.21(d). Pa.R.C.P. why Appellants prescribed no reason We discern Nonetheless, im Appellants that Sodexho learned that anticipated once should have Appala to discover from sought sought potentially undiscovera- properly request Appel correspondence between information, chian the they promptly appro- ble Green, using Dr. lants’ counsel in their answer to Sodex- priately objected to 4009.21: pursuant Pa.R.C.P. subpoena at 170- July ho’s motion on 2009. C.R. correspondence concerns Because the response, Appellants speci- In their role for his only preparation Dr. Green’s 4003.3 and Pa.R.C.P. fied both Pa.R.C.P. witness, any discovery re as an objection. the bases of their 4003.5 as correspon the said pertaining to quest events, Sodexho contends Despite these purview falls within squarely dence responsible Appellants that we must hold our review of 4003.5. From filing timely objection under Pa. for not record, Appellants we determine and conclude disagree R.C.P. 4009.21. We the intended unable to ascertain were legitimate no basis to had discovery request reach of Sodexho’s objection within the file an to solely upon an examination based specified under period Accordingly, Appellants subpoenas alone. 4009.21(d), subpoena appeared to understanding the reasonable as acted with Pa. subpoena, pursuant that the served Mr. treatment records. only seek Barrick’s 4009.21, only sought Hence, documents in Appel we refuse to determine that Mr. Bar- Dr. Green’s role as regard to preserve objection failed to their lants physician. treating rick’s Significantly, Sodex- subpoena. clarified, beyond went subpoena, ho’s only appar- made its intentions Sodexho request of Pa.R.C.P. 4003.5 enforce, seek- ent when it filed motion ing pertaining written materials to Dr. ing compel Appalachian produce Green’s role as an witness without between coun- (a)(2) showing cause under section *7 first regard Dr. in to his role as sel and Green result, that the rule. As a we determine expert witness. at 129-159. Filed C.R. substantially comply failed to 29, 2009, Sodexho Sodexho’s motion was on June Pennsylvania with the Rules of Civil Proc the time beyond received well constraints of discovery requests complete disregard to edure.7 Sodexho’s raising objections Hilliker, 256, attempt Pa. 908 A.2d must make a substantial to conform 7. In Worrier 589 (2006), Supreme our Court held that "a requirements the rules. Id. any failure to take of the actions wholesale Herein, comply Sodexho made no effort to procedure] civil re [of that one of our rules 4003.5; thus, Sodexho nei with Pa.R.C.P. misstep” quires” "procedural a mere is not substantially complied complied ther nor and, thus, satisfy not the doctrine of does Womer, supra (noting the at 278 rule. compliance. (stating substantial Id. at 278 equitable that the doctrine "is one of sub that, compliance, a mere under substantial compliance, compliance”). stantial not of no may only procedural misstep be overlooked if regarding Ap Our discussion the merits of rights any prejudice the the defect does not pellants’ argument deeper delves into the party); Specifically, 126. the see Pa.R.C.P. requirements of Pa.R.C.P. 4003.5. party that a Court stated does not substantial Nonetheless, juncture, important at this it is ly comply procedure civil if with the rules of Supreme to note our Court has determined disregards in their the terms of rule "[he] request party that a must cause to fur show steps entirety and determines the for himself discovery non-party expert wit ther from satisfy procedure we he can take to ness, interrogatories than described other adopted functioning have to enhance Womer, 4003.5(a)(1). Cooper v. supra at Pa.R.C.P. at 278. the trial courts.” Schoff 482, stall, (2006). Rather, compliance, 588 Pa. for substantial left court it language explained 4003.5 3-6. The trial that was plain Pa.R.C.P. in subpoena, unaware that the Appellants that where an is expert ] “satisfied [... fact, sought concerning written materials to advance a in being plaintiffs called case such, As expert testimony. Dr. Green’s expert’s chief and the nature of the testi- require- failure to adhere Sodexho’s been mony may materially have impacted directly 4003.5 induced ments of Pa.R.C.P. counsel, by correspondence with cor- such to So- Appellants objection not to file an respondence discoverable.” Id. at 5-6. discovery request within time dexho’s argue Appellants the trial court 4009.21(d). specified by period ordering in full writ- erred of all total Consequently, light of Sodexho’s ten communications between their counsel provisions for the forth in disregard set witness, expert Ap- and their Dr. Green. and, thus, failure to its pellants’ Substituted Brief on En Banc substantially comply with of Civ- the Rules 6-7, at Reargument 17-18. Specifically, Procedure, Appellants il we conclude that Appellants contend that the disclosure waived their We right object.8 have not private attor- communications between an proceed shall to consider merits of now expert ney and an witness “is within appeal. this the ambit of [Pa.R.C.P.] 4003.5 and instead lone issue we must presented, express to its Id. contrary language.” Pennsylvania whether the Rules of address (emphasis original). at 7 Appellants Procedure allow of the Civil op- aver that Pa.R.C.P. 4003.5 entitles the correspondence counsel written between (1) position only discover the name of and an witness counsel. retained “(2) witness the substance Herein, above, as noted the trial court and a summary grounds facts grant- issued an order on October for each to be offered at opinion trial.” ing motion to the sub- enforce assert that Pa.R.C.P. in- poena against Appalachian. The order 4003.5(a)(2) requires “good a showing of Appalachian produce, inter structed cause” to obtain further alia, correspondence Appel- between witness, any pri- from an expert including Dr. capaci- lants’ counsel and Green in his Although vate communications. Id. 8-9. ty as an witness. The trial court’s they that the re- concede opinion pursuant issued to Pa.R.A.P. 1925(a) quested in this case be relevant to the reveals that it found Sodexho’s *8 testimony, fell within expert’s Appellants the of Pa.C.R.P. maintain 12/15/09, Trial Opinion, 4003.5. Court at that un- private such communications are above, maintaining they objection beyond 8. As noted in that cause re- the was filed the right Appel- McGovern, object, Thus, have waived their not to quired period of time. Id. McGovern, rely upon In supra. lants case, that supra, untimely objection that an to a reveals question we confronted the whether of discovery request automatically “does not objections discovery the failure to file to a right object!,]” particularly waive to if the the request period prescribed within the of time alleges objection request discovery that the Pennsylvania the Procedure Rules of Civil targets (emphasis privileged information. Id. objections in the waiver all therein. results of original). Accordingly, agree Ap- we extremely We Id. at 1016. noted that "we are pellants. reasoning In addition to our set compels to affirm reluctant order that full above, McGovern, supra, forth as an serves being sought when the information independent Appel- concluding basis for that privileged.” may at be Id. 1019. Conse- objection lants have waived their as it ultimately we quently, that the determined privileged relates to the of informa- right object alleg- request to a for tion. Id. at 1018-1019. edly privileged information is not waived be- 808 “our procedure, a rule of civil language interpret of plain within
discoverable novo, our de and of review is standard Id. at 10. the rule. plenary.” review is Id. scope of policy point to adverse also Appellants if discov- would result considerations addition, interpretation In our 4003.5 were held to ery under Pennsylvania Rules of Civil Procedure com- private and reports the draft include by the contained guided principles witnesses.9 Id. munications 127, provides which as follows. 11, allege that this ex- Appellants 13-15. In of Rules. Rule Construction scope of Pa.R.C.P. view of the panded Supreme tent of Court Controls cause, an in- example, will (a) interpretation object of all and, consequent- litigation creased cost of rules is to ascer- and construction advantage for wealthier ly, competitive tain and effectuate the intention claim, litigants. Id. at 13-14. Supreme Court. alia, will attorneys and experts inter creating measures to avoid take elaborate (b) construed, if Every rule shall be Id. at 13. Accord- a discoverable record. provi- to all its possible, give effect measures include ing Appellants, these of a rule are sions. When the words experts directing and hiring two sets of ambiguity, free from all clear and record- taking notes and experts to avoid disregarded letter of it is not to be analyses opinions. and ing preliminary spir- pretext pursuing its under it. of an order “Generally, on review (c) the words of a rule are not discovery, court When
concerning appellate Supreme explicit, the intention an abuse of discretion standard.” applies Inc., 383, be ascertained consid- 5 A.3d Court Lockley Transp. v. CSX (1) among other matters Berkeyheiser ering, (Pa.Super.2010), quoting 388 rule; Inc., necessity occasion and for the Investigations, 936 A.2d v. A-Plus (2) Nevertheless, under which it the circumstances (Pa.Super.2007). (3) promulgated; the mischief interpretation that “the was recognize we (4) remedied; object to be at- Pennsylvania of a Rule Civil application (5) tained; prior practice, any, if of law.” presents question Procedure (Pa.Su Acts of As- Miller, including other rules and Boatin (citation omitted). or similar reviewing sembly upon the same per.2008) (6) order, subjects; consequences of a we the trial court’s October (7) con- particular interpretation; prop whether the trial court must address rule; history of the Pennsyl temporaneous erly interpreted applied (8) the followed under practice Procedure. Accord vania Rules of Civil that we are the rule. ingly, required to the extent *9 reports draft private communications and Notably, Appellants cite the Federal Rules Procedure, adopted change which in 1993 an expert of Civil witnesses. This stems from regarding discovery expansive approach the the Com- the recommendations of both from expert materials obtained from an witness. of on Rules of Practice and Procedure as mittee En Banc Appellants’ Substituted Brief on Committee, Advisory publish- well the each 11-17; Reargument See F.R.Civ.P. at ing report that articulates the adverse con- 2010, 26(a)(2)(B). Effective December the years permitting sequences after of observed Supreme Court amended the United States discovery expansive of materials ob- more scope to restrict the of such Federal Rules expert tained from witnesses. allowing discovery discovery, longer the of no (b) 127; Corp., see Bednar v. Dana the other party Pa.R.C.P. to have each 1232, (Pa.Super.2008). 962 A.2d Fur so expert identified state the sub- thermore, explana “a note to a rule or an stance of the opinions facts and to rule, the tory part comment is not a but expert which the expected to tes- may construing used in the rule.” Boa be tify summary grounds and a 129(e). tin, supra citing Pa.R.C.P. opinion. party for each an- swering interrogatories may file begin As we our review of the trial as his or her answer a report order, we note that court’s Pa.R.C.P. expert or have the interrogatories general regard 4003.1 sets forth the rule by answered expert. The an- ing scope discovery. to Pursuant swer or separate report 4003.1(a), shall be party may Pa.R.C.P. “a obtain signed expert. matter, discovery regarding any privi leged, subject which is relevant to the (2) shown, Upon cause the court action, pending matter involved may order further discovery by oth- it whether relates to the claim or defense means, subject er to such restric- of the party seeking discovery or to the scope tions as to provi- and such claim any party[.]” or defense of other concerning sions fees and expenses Although required it is not admissi as the court appropriate. deem trial, ble at the information sought must 4003.5(a)(l)-(2). Pa.R.C.P. Supreme Our appear “reasonably calculated to lead to has interpreted Court how Pa.R.C.P. discovery of admissible evidence.” Pa. 4003.5 interacts with general scope 4003.1(b). R.C.P. “[Pa.R.C.P.j discovery, announcing that
The general parameters for the of 4003.5should be read to restrict the scope discovery contained Rule howev- of all from non-party witnesses er, are “[sjubject provisions of Rules experts retained as in trial preparation.” 4011[.j” 4003.2 to 4003.5 inclusive and Rule Cooper v. Schoffstall, 588 Pa. 4003.1(a). Providing Pa.R.C.P. the rules (2006) added). Thus, (emphasis expert for as it relates to testi- according Court, to our Supreme any re mony, Pa.R.C.P. 4003.5 states the follow- quest for not covered under Pa. ing in pertinent part. 4003.5(a)(1) shall be channeled Discovery Expert Rule 4003.5. Tes- “through the Rule’s ‘cause shown’ criteri timony. Preparation Trial Material Id., 4003.5(a)(2). citing on.” (a) Discovery of facts known and 4003.5(a)(1), Under Pa.R.C.P. the rule opinions expert, held otherwise party interrogatories allows a to submit provisions discoverable under the of any party, other requiring opposition Rule 4003.1 acquired developed identify each of expert their witnesses trial,
in anticipation of litigation or for as well as “to have each so identi- may be obtained as follows: fied state the substance of the facts and (1) A party may through interroga- opinions expected to which the tories require testify summary and a grounds
(a) 4003.5(a)(1). party identify other opinion.” each each person whom the other party emphasize ex- interrogatories We these pects to call as an witness at upon must be served retaining *10 subject witness, trial and to state the expert matter the as a directly upon not expert expected on which the is to expert. Significantly, the Id. as Pa.R.C.P. testify and 4003.5specifies, party directly a cannot expert their tween counsel and request upon a non- any serve witness, provisions set Dr. Green. also underscore witness. We party expert 4003.5(a)(1) 4003.5(a)(1) do not allow narrowly de- forth Pa.R.C.P. that Pa.R.C.P. Rather, discovery. as men- party a this form of inquiries that the substantive fines (a)(1) above, only of the rule answer tioned section opposing expert an to may require very narrowly a party the entitles a to serve As this section of interrogatory. in an only upon op- an may require interrogatories set of party a defined specifies, rule Although Pa.R.C.P. posing party. facts and to state the opposing experts 4003.5(a)(1) expressly party notes that a they expected are to to which opinions interrogatories by filing the a grounds may the for answer testify and to summarize by expert, the Any interrog- report signed devised and Id. other opinion. each such the rule not authorize specific inqui- two this section of does atory, from these aside ries, any to discover written docu- scope plain party lan- exceeds the directly expert within ment from an witness. contained Pa.R.C.P. guage 4003.5(a)(1). as indicated Consequently, Second, over subpoena Sodexho’s construction of by Supreme our Court’s it reached in terms of substance because “further discov- to obtain Pa.R.C.P. beyond the sought permissive information testimony expert of an ery” regarding the 4003.5(a)(1). we scope of Pa.R.C.P. As narrowly other than this by witness means interrogatories under previously, stressed interrogatories, party must defined set 4003.5(a)(1) only may require an acquire cause and a court order for show opposing party’s expert witness to “state discovery. additional opinions of the facts and substance 4003.5(a)(2) (providing “[u]pon cause expected testify expert which the is shown, the court order further discov- grounds for each [to] summarize] [] means”); Cooper, supra ery other See Any discovery request for infor opinion.” at 492. clear, beyond of this mation the boundaries explicit, imper and succinct statement
After careful review of the record 4003.5(a)(1). Pennsylvania Rules of missible under Pa.R.C.P. applicable and the Procedure, Thus, discovery request the case law for the content including Civil rules, an any correspondence oppos those we conclude that between interpreting by issuing ing party’s attorney expert court erred the Octo and the witness the trial order. The information re retained falls outside the ber 4003.5(a)(1). express quested by subpoena language exceeds of Pa.R.C.P. 4003.5(a)(1) correspondence responsive two is not of Pa.R.C.P. for Such First, wit separate interrogatory seeking expert and distinct reasons. as its denotes, clearly to enforce Sodexho ness to “state the substance of the facts motion expert expect to which the opinions intended to use its to obtain and directly oppos testify[,]” responsive from an ed to nor is it to an written documents Specifically, interrogatory seeking witness. witness ing party’s each grounds that Sodexho’s sub to summarize “the for his [of record indicates directly Accordingly, we poena Appalachian opinion[s].”10 was sent or her] that, by seeking the written cor- sought correspondence the written be- conclude Correspondence party's specifically attor cited such as one between ney expert may response expert opinion. be a valid for his or her Such is basis narrowly interrogatories defined under Pa. here. case if, 4003.5(a)(1) example, *11 respondence correspondence between counsel between their counsel and capacity and Dr. Green in his as an expert Dr. Green is not discoverable because it witness, in- subpoena requested Sodexho’s within parameters falls of the work- permissible formation that was outside the product doctrine. Appellants’ Substituted 4003.5(a)(1). confínes of Pa.R.C.P. Brief on En Reargument Banc at 10-11. According Appellants, forcing the disclo Furthermore, because Pa.R.C.P. of any sure communications between coun scope discovery 4003.5 defines the of all sel and an witness “violates the concerning expert testimony, our Supreme work product privilege in contained [Pa. has made clear any discovery Court 4003.3.” Id. agree. R.C.P.] We request by not covered Pa.R.C.P. 4003.5(a)(1) “through shall channeled Pennsylvania Rules of Civil the Rule’s ‘cause shown’ criterion.” Coo Procedure set forth work- per, supra citing doctrine, product provides which as fol 4003.5(a)(2). In seeking to obtain written lows. witness, from an expert communications Rule Scope Discovery. 4003.3. Sodexho’s a request was Preparation Trial Generally Material discovery by “further other means” within Subject to the provisions of Rules 4003.5(a)(2). the purview of Pa.R.C.P. 4003.5, 4003.4 and party may obtain Thus, we determine that Pa.R.C.P. discovery of any matter discoverable 4003.5(a)(2) required Sodexho to show under Rule though 4003.1 even pre- acquire cause and a court order before pared in anticipation of litigation or requesting Appalachian from the sought trial or for party another or or regard to Dr. Green’s for that other party’s representative, role as an witness. Without first including his or her attorney, consul- cause, showing any discovery direct re tant, indemnitor, surety, insurer or quest for documents an expert from wit agent. The shall not in- beyond ness is scope of Pa.R.C.P. clude disclosure of the mental im- Consequently, 4003.5. because Sodexho pressions party’s attorney of a cause, never showing made we con conclusions, his or her opinions, clude that request is memoranda, summaries, notes or le- clearly beyond of Pa.R.C.P. gal legal research or theories. With and, therefore, sought corre respect representative par- of a spondence is not discoverable under the ty other party’s than the attorney, Pennsylvania Rules of Civil Procedure.11 discovery shall not include disclosure 4003.5(a)(2). See Pa.R.C.P. of his or her impressions, mental con- addition, Appellants argue that opinions clusions or respecting the the trial court’s discovery order contra value or merit of a claim or defense or venes noting respecting strategy or tactics. herein, 11. The trial court's October 2009 order communications Sodexho has never granting Sodexho's motion to enforce does recognized shown cause nor its need to show satisfy requirement under Pa.R.C.P. Second, required cause. Sodexho was 4003.5(a)(2), specify which that a must serving subpoena upon show cause before acquire obtaining a court order before further Appalachian, requesting written communica interrogatories pursuant other than regard testimony. tions in Pa. First, 4003.5(a)(1). attempt- to Pa.R.C.P. 4003.5(a)(2). ing through subpoena to obtain the written *12 812 added). protected against dis- litigation, Ac is (emphasis 4003.3
Pa.R.C.P.
may
ac
not base his
covery.
comment
A defendant
explanatory
cording
Rule
“[t]he
and
companying
upon
opinion
Pa.R.C.P.
an
counsel
defense
exactly
means
what
and
carefully
drawn
that it is immune
at the same time claim
Id.,
at
Explanatory Comment
says.”
it
plaintiff.
pre-trial disclosure to the
from
¶
the work-
underlying purpose of
“The
3.
party,
of a
and
representatives
As to
mental
to shield the
doctrine is
product
may
there
be
attorney,
an
sometimes
attorney, providing privi
of an
processes
opin-
his conclusions or
situations where
analyze
he can
which
leged area within
claim,
to the value or merit of
ion as
case. The doctrine
his client’s
prepare
original litigation,
in the
not discoverable
adversary system by en
promotes the
subsequent
in
lit-
be discoverable
should
prepare
cases without
attorneys
abling
brought
suit is
example,
For
igation.
product
work
will be used
fear that their
unrea-
an insurance carrier for
against
Elwyn,
T.M. v.
their clients.”
against
settle,
in
resulting
sonable refusal
Inc.,
(Pa.Super.2008),
1062
against
the insured in an
judgment
Blue
Independence
quoting Gocial
in
of the insurance cover-
amount
excess
Cross,
(Pa.Super.2003)
A.2d
1222
inspection
age. Here
omitted).
(citations
marks
quotation
in camera where
permitted
should be
Thus,
“immu
specifically
protected
out
material.
required weed
con
impressions,
mental
lawyer’s
nizes the
notes,
memoranda,
clusions,
sum
opinions,
4003.3, Explanatory
Comment
theories,
maries, legal
legal
research and
¶
Thus,
the comment makes
at
4-5.
Id.,
nothing
Explanatory Com
more.”
clear,
ordinarily protected by
documents
¶
added).
(emphasis
ment at
attorney work-product
may
doctrine
be
however,
Court,
recog
has
This
product
discoverable if the work
itself
work-product privilege is
nized that “the
underlying action. Id. The
relevant to the
may
and items
be deemed
not absolute
privilege contained within
work-product
sought be
‘product’
if the
discoverable
overcome, how-
Pa.R.C.P. 4003.3 cannot be
issue in the action.”
comes a relevant
ever,
protect-
by merely asserting that
Gocial,
T.M.,
1062, quoting
supra
supra at
subject
documents reference relevant
ed
Importantly,
explanatory
Rather,
Id.
to overcome the
matter.
excep
limited
comment reveals that this
an attor-
work-produet privilege, either
only per
work-product
tion to the
doctrine
conclusions,
ney’s
impressions,
mental
attorney’s
work
tains to situations when
memoranda, notes, summaries,
opinions,
itself becomes relevant.
product
must be
legal
legal
research or
theories
are, however, situations under
There
directly relevant to the action.
of an
legal opinion
the Rule where the
case, any
impres-
instant
mental
relevant issue in an
attorney becomes a
legal analyses posited
Appel-
sions
action;
for mali-
example,
an action
within the
counsel and contained
lants’
process
or abuse of
prosecution
cious
attorney
constitute
sought correspondence
good
on a
where the defense is based
ac-
product.
work
Pa.R.C.P. 4603.3. We
legal opinion
faith reliance on a
of coun-
review
knowledge that an in camera
a relevant
opinion
sel. The
becomes
pre-
to determine
necessary
order
defendant,
for the
piece of evidence
cisely
aspects
what
rely. The
upon which defendant will
parameters
fall within the
may have been
opinion,
though
even
it
Nevertheless,
work-product
future
doctrine.
anticipation
possible
sought
*13
the correspondence
complied
the extent
be- Sodexho had
with Pa.R.C.P.
tween
counsel and Dr. Green
Appellants’
4003.5(a)(2), the correspondence between
attorney
product pursu-
constitutes
work
Appellants’ counsel and Dr. Green was not
4003.3,
ant to Pa.R.C.P.
we conclude that it
Accordingly,
discoverable.
we conclude
Pennsylvania
is not discoverable under the
that Pa.R.C.P. 4003.3 serves as a separate
Rules of
(stating
Civil Procedure.
Id.
independent
and
basis for our decision.
discovery shall not
“[t]he
include disclo-
closing,
upon
interpretation
based
our
sure of the
impressions
party’s
mental
of a
of the Pennsylvania Rules of Civil Proce
conclusions,
attorney or his or her
opin-
dure, drawing upon
plain language
the
ions, memoranda,
summaries,
notes or
le-
the rules and the
jurisdic
case law of this
theories”).
gal
legal
research or
tion, we conclude that the trial court com
that,
further
We
conclude
even if Sodex-
mitted an error of law in granting Sodex-
ho
attempted
pursuant
had
to show cause
ho’s motion to enforce. As
Supreme
our
4003.5(a)(2),
to Pa.R.C.P.
it would not have
determined,
has previously
Court
other
been
correspon
entitled to discover the
than the interrogatories described in Pa.
dence in this case. Insofar as the informa
4003.5(a)(1),
R.C.P.
the Rules of Civil Pro
sought
protected by
tion
the work-prod
require
cedure
that a
show cause to
doctrine, showing
uct
cause under Pa.
obtain further
from an
4003.5(a)(2)requires
R.C.P.
demonstrating
Cooper,
witness.
supra at 492. Sodexho
why
privilege
yield
the
must
to the need
in this case
failed to make
such show
discovery.
for
Cooper, supra
See
at 494-
Thus,
ing.
we hold that
subpoe
(reasoning
proponents
that the
of dis
seeking
na
Appellants’
documents from
ex
covery bear the burden of demonstrating
pert
why they
beyond
witness was
the scope
are entitled to additional
of Pa.
discov
4003.5(a)(2)
ery
4003.5,
under Pa.R.C.P.
in
R.C.P.
regard
showing
without first
cause
expert testimony).
Although the work-
why
as to
such a discovery request was
absolute,
product doctrine is not
we noted
Furthermore,
needed.
the written com
only
privilege
above that the
surrenders munication between
counsel and an
need for
when the attor witness retained by counsel is not discov
ney’s
product
work
itself becomes relevant
erable
Pennsylvania
under the
Rules of
4003.3,
to the action.
Explana
Civil Procedure to the extent
that such
¶
tory
Here,
Comment at 4-5.
unlike the
communication is protected by the work-
in
examples
explanatory
comment ac
doctrine,
product
the proponent
unless
companying Pa.R.C.P.
the corre
the discovery request
pursuant
shows
spondence
only
relevant because of the
4003.5(a)(2) specifically why
subject matter
Appel
discussed between
such,
communication itself is relevant. As
lants’ counsel and Dr. Green. The corre we also hold that Pa.R.C.P. 4003.3 immu
spondence itself is not relevant
to this nizes from discovery any work product
action.
In stark
examples
contrast
contained within
correspondence
be
comment,
in
explanatory
Appellants’
tween
counsel and Dr. Green.
action
upon
opinions
analy-
relies
and
Therefore, for all the reasons
witness,
ses of
discussed
not those of
analysis,
our above
we hold that
attorneys.
(providing
their
examples
correspondence at
illustrating
work
issue
this case is not
product “is
protected against
not
discoverable under
discovery”
Pennsylvania
where a
Rules
party’s claim or
upon
pursuant
defense relies
Civil Procedure
to both Pa.
Therefore,
opinion
attorney).
of its
even if
and Pa.R.C.P. 4003.5.
updat-
sought
Sodexho
On June
remanded
Case
reversed.
Order
subpoe-
via
ed records
opinion.
with this
consistent
proceedings
and,
object.12
Appellants did
again,
na
relinquished.
Jurisdiction
dealing
that it was
Sodexho still believed
using
treating physician
with a
concurring
files a
BOWES
Judge
discovery method to do so. Un-
acceptable
dissenting opinion.
*14
Sodexho, however, Appel-
beknownst
AND DISSENTING
CONCURRING
expert
Dr. Green as an
lants had retained
BOWES, J.:
BY
OPINION
Appellants did
April
on
witness
Pennsylvania
subpoena seeking
of a
object
holds that
to the use
majority
The
not
4003.3 and
and other doc-
expert’s correspondence
of
Procedure
Rules Civil
letters and
Dr. Green was
ground
renders
on the
that
independently
each
uments
expert
and his
wit
expert
counsel
witness and that
testifying
emails between
a
that Pa.
agree
I
scope
exceeded the
of
subpoena
ness non-discoverable.
of a
use
permissi
which defines
under
experts
of
permissible
expert
witness
scope
Instead,
and
ble methods
asked
Rule 4003.5.
subpoena
the use of a
discovery, precludes
and
to disclose letters
Appalachian
expert
to obtain documents
directed to
Dr. Green that
between counsel and
emails
Thus, I concur in that
file.
expert’s
in the
physician
should frame
addressed how
However,
majority opinion.
portion of the
testimony,
Appalachian
and
expert
his
Pa.
majority
disagree
I
at 7.
Appellant’s original brief
complied.
work-prod
affords blanket
R.C.P. 4003.3
for the first time that
Sodexho learned
communications vis-a-
uct
to all
protection
expert
trial
on
Dr. Green was
From
vis expert.
and his
16, 2009,
July
Appellants opposed
when
writing, I re
part
majority
subpoena
motion to enforce the
spectfully dissent.
be-
asserted that
Preliminarily,
perplexed
I am
that the
privi-
Dr. Green
tween counsel and
was
a sub-
majority
using
berates Sodexho for
At that
the trial court had
leged.
point,
from an
poena
obtain
argument on the motion
already scheduled
lan-
disregard
plain
“in
complete
agreed to an
compel
parties
and the
had
4003.5,” Majority Opin-
guage of Pa.R.C.P.
camera,
if the cor-
review to determine
willing
Appel-
to overlook
ion at
but
work-product privileged.
respondence was
procedures
with the
non-compliance
lants’
articu-
Appellants timely objected
Had
4009.21(c)
object-
for
set forth in Pa.R.C.P.
for their
lated Rule 4003.5 as the basis
subpoena.
majority
a
fails to
ing to
trial court could have ruled
objection, the
served
that when Sodexho first
appreciate
without an in camera exami-
on this issue
on March
subpoena upon Appalachian
a
nation.
19, 2008,
simply Appellant’s
Dr. Green was
out, a
majority correctly points
subpoena
As the
treating
The use
a
physician.
to obtain written
permitted
is not
seeking
discov-
is a sanctioned method
opposing
from an
ex-
directly
documents
ery
non-party, including treating
from a
is limited to
pert;
physician. See 4009.21.
stated, "including
limited to:
clearly
but not
majority
the sub-
12. While the
characterizes
notes,
records/reports/corre-
copy
doctor's
poena
seeking only
"[cjomplete
office
Subpoena,
...”
spondence/notes/memoranda,
regarding CARL
the entire medical chart/file
6/2/09,
BARRICK,
[...],”
at 1.
J.
DOB
4003.5(a)(1)-(2).
interrogatories
opposing
directed to
coun- Pa.R.C.P.
Cooper
See
seeking
summary
sel
Schoffstall,
of the “substance
588 Pa.
4003.1 and or in developed an- shown,” cause no such argument was ad trial, ticipation litigation of or for may vanced in justify this case to any alternate be obtained as follows: forms of discovery. in Bearing mind that (1) party may A through interrogato- Rule 4003.5 is a discovery rule and extends require ries trial, protection only its until I in am (a) any party other to identify each agreement with the majority’s application person whom party the other ex- of this rule to these facts. pects to call as an expert witness at However, I must part company with the
trial subject and to state the matter majority regarding the balance of its hold- on which is expected to ing. majority, The instead of relying sole- testify and ly upon Rule 4003.5 as the basis for its (b) party the other to have each decision, opines also that the correspon- expert so identified state the sub- dence at issue constitutes work product stance of the opinions facts and protected and is pursuant to Rule 4003.3. which the expert expected to tes- Majority Opinion at 811. That rule states: tify summary and a grounds Scope Rule Discovery. 4003.3.
for each opinion. The party an- Preparation Trial Generally Material swering interrogatories may file as his or her answer a report Subject provisions of Rules expert or have the interrogatories 4003.4 and party may obtain by expert. answered The an- discovery any matter discoverable un- swer or separate report shall be der Rule 4003.1 even though prepared in signed by expert. anticipation of litigation by or trial or for (2) shown, Upon cause the court may party another by or or for that other order further discovery by other party’s representative, including his or means, subject to such attorney, consultant, restrictions as her surety, indem- provisions nitor, such concern- agent. insurer or The ing expenses fees and as the court shall not include disclosure of the mental may deem appropriate. impressions party’s of a attorney or his shown, Upon party may cause permit- be there is a reasonable basis "to believe that the engage supplemental ted to in may relat- witness professional have entered the potential ed to bias or favoritism category.” Cooper Schoffstall, of a non- witness party (2006). witness retained for trial where Pa. A.2d 494-495 any between counsel conclusions, memoran- communications opinions, or her summaries, work-prod- da, legal research ‘violates the witness notes or respect With theories. in legal privilege [Pa.R.C.P.] or uct contained ” party other than the representative of a Majority (quot- at 811 Opinion 4003.3.’ not in- attorney, discovery shall party’s en substituted brief on ing Appellants’ her mental of his or clude disclosure 10-11) (emphasis add- reargument banc re- opinions or conclusions impressions, ed). by is refuted majority’s premise The or or merit of a claim the value specting “a general proviso party Rule 4003.3’s strategy or tactics. respecting or defense matter discov- may obtain 4003.3. though pre- even under Rule 4003.1 erable litigation or trial initially anticipation what I majority pared reiterates long-standing view or or for that believe to be or for another correspon- as the such Presum- party’s representative!.]” where documents other alia, contain, inter allegedly herein dence correspondence. that would include ably, attorney’s impressions mental impressions Only the disclosure of mental nec- camera review strategies, “in conclusions, or her “or his precisely to determine essary order summaries, memoranda, opinions, *16 correspondence of the fall aspects what theories!,]” legal pre- or is legal research attorney of the parameters within the Conspicu- 4003.3. cluded. See Pa.R.C.P. Majority Opinion work-product doctrine.” prohibition blanket ously absent Inc., 950 A.2d Elwyn, See T.M. v. at 812. attorney’s cor- against the disclosure of an (remand required for (Pa.Super.2008) 1050 generally, or communication respondence each ruling to issue whether trial court Such corre- expert specifically. with an necessary, and if privileged document was the to the extent it contains spondence, examination); In re Estate in camera and conclusions of the impressions mental Wood, (Pa.Super.2003) 573 protect- attorney, may be determined judge instructs trial (Superior Court following an in camera product ed work if material in camera to determine review However, clear- examination. Rule 4003.3 applies). ap- This work-product doctrine attorney all communi- ly does not insulate cor- proach implicitly recognizes such discovery. cations from respondence attorney product is not work discussion, majority attorney work-product In the doc- per Using se. its the as, statements, such properly qualifies correspon- its protect expert’s trine to the that the be- “to the extent attorney proble- to the is even more dence Dr. Green result, tween counsel and reaching majority its matic. ..., attorney work-product we constitutes expert is a implicitly concludes ...,” conclude that it is not discoverable correspon- party representative so that his Majority Opinion at and “Insofar pen- within the presumptively falls dence by the sought protected the information However, that rule umbra of Rule 4003.3. work-product doctrine....” “attor- representatives party’s to a limits indemnitor, consultant, surety, insur- ney, by I reconcile these statements cannot mention is made of an agent.” er or No however, its simulta- majority, with of the representative witness as a approval Appel- neous wholehearted bridge this party.14 majority does “forcing lants’ contention that disclosure implies the exclusion of matter in a statute 14. Under the doctrine of expressio est unius alterius, specific Gulph of a other matters. See Mills inclusion exclusio Atcovitz logical gap insight and offers no as to how mischief to be remedied. See Pa.R.C.P. 127(c). why it arrived at the conclusion that the expert’s correspondence is entitled to Rule recognize I salutary purpose protection.15 doctrine, work-product which is “to shield processes the mental attorney, pro an A review the documents at issue viding privileged area within which he certainly attorney this case reveals some analyze prepare can his client’s case.” However, product. work documents Cross, Independence Gocial v. Blue contain provided by also facts that were (citations (Pa.Super.2003) A.2d counsel to the and correspondence omitted); quotation marks see also attorney, from the neither of Inc., Elwyn, T.M. v. supra at 1062-63. attorney which constitutes work product. However, while goal is “to keep the I believe that conferring work-product files of counsel free from examination all protection upon correspondence be- opponent,” it only does so insofar as tween the expert, and his lawyer’s files do not include “written majority impermissibly expanded has Rule witnesses, statements of documents or far-reaching implications.- It property belong which to the client or potentially infringes upon party’s right parties, third or other matter which is not expert discovery upon obtain additional encompassed in category the broad 4003.5(a)(2). cause shown pursuant to Rule product’ ‘work of the lawyer.” See Civil The ramifications also extend to trial. Procedural Rules Committee Explanatory Presently, expert’s file becomes avail- (1978). Comment to Rule 4003.3 Rule able for an opponent’s inspection and use lawyer’s 4003.3 “immunizes the mental im *17 at trial. If all communications between conclusions, pressions, opinions, memoran- expert attorney the and the constitute da, notes, summaries, legal research and product, they work will protected theories, more[,]” id., legal nothing to en through the course of the trial. attorneys prepare able to their cases “without fear product that their work will job Our in construing a rule of civil against be used their clients.” Common procedure is to “ascertain and effectuate Noll, 602, wealth v. 443 Pa.Super. 662 A.2d the Supreme intention of the Pa. Court.” (1995). 1123, 1126 127(a); Anisman, Kurian v. 851 A.2d 152 (Pa.Super.2004). When the rule Although purpose the of the work-prod- clear unambiguous, and “the letter of it uct doctrine provide attorney is to an disregarded is not to be under pretext the intellectual room to ruminate about his 127(b). pursuing spirit.” of its strategy ease, thoughts and on his client’s explicit guidance, Absent we consider sev we must be mindful equally impor- of the eral in ascertaining factors the intent of goal tant of the advancing truth-seeking Court, our Supreme among them the process ne during litigation. the course of rule, cessity for the history, its and the adoption Prior of our current discov- Club, Inc., 580, 1218, Tennis 571 Pa. 812 A.2d disclosing 15. Sodexho also contended that in (2002). doctrine, 1223 Pursuant to this attorney work-product protected information expert absence of reference to an witness expert, non-representative, his a party representative imply as would that the any work-product privilege. Appel- waived and, expert category was excluded from that Pennsylvania authority lants cite no to this hence, protection work-prod- from the of the effect, any. and I am unaware of uct doctrine. 818 therein, both the majority fails to serve information obtained in all
ery rules an of that rule. Such litigation spirit letter and the anticipation party discovery under from would seem to undermine protected interpretation trial was 4011(d). Proce then Rule Civil carefully what was cir- High intent our Court’s Explanatory Com Rules dural Committee afforded an attor- protection cumscribe (1978). Rule 4003.3 Rule 4003.3 ment to in favor of broader ney’s preparation trial work-product/trial most of that abolished Moreover, ex- by treating an discovery. of broader favor preparation protection representative for witness as a pert “The discovery. purpose work-product, Rule 4003.3 purposes and unfairness prevent surprise rules is any pretense expert majority abandons merits.” a fair trial on the to allow and objectivity independence.17 and Hanson, 824, 826 Dominick reasons, agree I foregoing For omitted). (citations (Pa.Super.2000) cor- precludes Rule 4003.5 exception is an work-product doctrine attorney and emails between respondence Gocial, rules, supra, general in this via use of and embodied therein is not privilege holding sacro- I find no basis for case. Id.; also The Birth an absolute one. see between Inc., sanct all Companies, v. St. Paul Center attorney work-product protected (Pa.Super.1999) overruled A.2d Co., and, portion Mishoe v. Erie Ins. Rule 4003.3 from that grounds on other under (2003) (work A.2d 1153 I majority holding, respectfully 573 Pa. dis- in situations where product discoverable sent. attorney becomes a legal opinion action).16 in an
relevant issue prod- Rule 4003.3 work holding protection of all cor- provides
uct blanket his between the
respondence herein, all including on the facts included discoverable material
properly *18 protection proposed Rules Committee has work-product should Procedural 16. Whether change which would pursuant to Pa.R.C.P. to Pa.R.C.P. yield to 4003.5(a)(2), attorney’s prod- party’s where the work all communications between make expert's opinion, testifying of an non-discover- uct serves as the basis able, yet regardless has not been addressed the communi- is an issue which of the form of per- appellate courts. an amendment could be our cations. Such largely if Rule 4003.3 ceived as redundant out, mindful, already protection provides such from discov- point and I am ery majority holds. Pennsylvania Supreme Civil as the now Court’s notes