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September 6, 2012

Handle With Care: Level Of Protection Afforded To Communications Between Attorneys And Their Experts Is Still Up In The Air

334225_press_conference.jpgThe Pennsylvania Supreme Court will determine the scope of the work product protection afforded to communications between a party's attorney and trial expert witnesses. By order dated August 31, 2012, the Court granted the petition of Sodexho Management, Inc., Sodexho Operations, LLC and Linda J. Lawrence to review the Superior Court's en banc decision in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity to determine the following specific issue: "Whether the Superior Court's interpretation of Pa. R.C.P. No. 4003.3 improperly provides absolute work product protection to all communications between a party's counsel and their trial expert?"

The Supreme Court's decision to grant review in Barrick follows on the heels of the decision by a nine-judge en banc panel of the Superior Court to reverse both the trial court and a Superior Court three-judge panel finding that such communications were discoverable. The Superior Court's en banc held, in part, that any mental impressions or legal analyses contained within correspondence between a hospital patient's counsel and the patient's expert witness physician fell within the attorney work-product doctrine and, accordingly, were not discoverable.

Interestingly, although the Superior Court's en banc decision held that the correspondence at issue was not discoverable under the Pennsylvania Rules of Civil Procedure pursuant to both Pa. R.C.P. 4003.3 and Pa. R.C.P. 4003.5, the Supreme Court limited the issue to be decided to the scope of work product protection under Pa. R.C.P. 4003.3. Pa R.C.P. 4003.3 provides work product protections to "the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories." The rule also addresses the work product protections afforded to a party's representative who is not the party's attorney providing that "discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics."

As Judge Bowes correctly pointed out in his concurring and dissenting opinion in the Superior Court's en banc decision, Pa. R.C.P. 4003.3 does not provide a blanket prohibition against the disclosure of an attorney's correspondence generally, or communication with an expert specifically. Consequently, it seems likely that the Pennsylvania Supreme Court will find that there is no absolute work product protection to all such communications. It remains to be seen, however, whether the Court will carve out specifically defined categories of communications, thereby providing concrete guidance for attorneys and their experts.

Until the Pennsylvania Supreme Court issues its decision in Barrick and provides further guidance on the scope of the attorney work product, parties, their attorneys, and retained experts are well served by operating under the assumption that the work product does not protect all of their communications.

August 28, 2012

Forensic Linguistics: An Area to Keep In Mind In Investigations and Litigation

331980_paper_3.jpgBy analyzing syntax and linguistic patterns an expert can, on occasion, reach reasonable conclusions as to whether a particular individual authored a document. This can be a crucial matter in an internal investigation or in the defense of a crime. A lengthy recent article in The New Yorker Magazine (July 23, 2012, J. Hitt), entitled "Words on Trial", discusses the subject in an entertaining and informative way and would be helpful for the reader seeking more detail. Even if such analysis can't conclusively prove a specific person wrote a document or uttered a phrase it can be helpful in cutting down the number of suspects to a more easily investigated group.

The field of forensic linguistics received considerable attention in 1996 when it was partially responsible for solving the Unabomber case. Within a few days of publishing the Unabomber's Manifesto the FBI received tips from over a dozen people, including the Unabomber's brother, that the mode of expression, vocabulary and syntax of that document was similar to Ted Kaczynski's utterances. The Manifesto made repeated use of the terms "chimerical" "anomic" and "cool headed logicians" as well as the phrase "you can't eat your cake and have it too." People personally familiar with Ted Kaczynski immediately recognized these phrases as catchwords of his and the focus of the far ranging investigation was immediately and very effectively tightened to just him.

Historically, forensic linguistics has been used in a common sense way. In the Old Testament, at Judges12:6 an early use is made of forensic linguistics. In that passage it is recounted that after a melee between a tribe of Israel (the Gileadites) and their enemies (the Ephramites) a number of Ephramites attempted to pass as victorious Gileadites and make their escape from the battlefield. The Gileadites were able to unmask the posing Ephramites by forcing them to pronounce the Hebrew word "shibboleth". Ephramites apparently pronounced the first syllable "sib" unlike the proper Hebrew pronunciation of "shib". To quote the text, "If he say 'shibboleth' then they seized him and slaughtered him at the fords of the Jordan". Also historically in the Lindbergh Kidnapping case the prosecution made much of misspellings in the ransom note which matched errors made by the defendant Bruno Hauptmann in other contexts. The text of the kidnapping note to Colonel Lindbergh included, "We warn you for making anything public or for notify the Polise the child is in gut care." Hauptmann had misspelled "police" and used the German "gut" for good in other contexts.

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