Discovery of Expert Communications At Issue

 Here is one to watch for our readers who practice in Pennsylvania.  The state Supreme Court has before it the issue of discovery of communications between lawyers and their expert witnesses. See Carl Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, et al., No. 76 MAP 2012 (S.Ct. Pa.).

Barrick filed suit against Holy Spirit Hospital and Sodexho Management Inc. alleging personal injuries in the cafeteria of Holy Spirit Hospital.  An orthopedic surgeon who treated Barrick for injuries sustained from the accident was also named as an expert witness.  One of the defendants subpoenaed Barrick’s medical chart and other records, but the Doctor's medical center withheld some records which allegedly were trial preparation materials under Pennsylvania Rules of Civil Procedure.

The defendant filed a motion to compel, and after the trial court conducted an in camera review, the court ordered the release of the materials to the defendants.  This was in line with some state cases that suggested work product protections in Pennsylvania are not as strong as under the federal rules. The plaintiff appealed, and a panel of the Superior Court upheld the ruling in 2010. The issue was then reconsidered by the Superior Court sitting en banc, which ruled that the Pennsylvania Rules of Civil Procedure did not compel the disclosure of such communications between attorneys and their expert witnesses. Arguably this ruling offered more protection than the federal rules do.  It also made an interesting contrast with Rule 4003.5 which, upon cause shown, gives state courts some ability to compel experts to do more than the basic response to interrogatories regarding their anticipated testimony at trial.

The 8-1 majority reasoned that Pa.R.C.P. 4003.5 controls discovery regarding expert testimony, and it specifies that a party cannot directly serve discovery requests upon a non-party expert witness. Discovery regarding testimony of an expert other than through a defined set of interrogatories must be made upon the showing of good cause to the court, not through a subpoena. Here, the correspondence sought by the defendant did not fall into the area of interrogatory permitted under Rule 4003.5(a)(1).  

Following the en banc ruling, defendants appealed.  The issue before the supreme court now is whether the superior court’s holding “improperly provides absolute work-product protection to all communications between a party’s counsel and their trial expert.”

Marital Privilege Over Emails Rejected in Oil Spill Litigation

The massive litigation over the Gulf oil spill has spawned a wide range of significant legal issues.  Here's an interesting little one. The magistrate judge in the MDL has held that a BP drilling engineer cannot assert marital privilege regarding e-mails to his spouse sought by the plaintiffs. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, MDL 2179 (E.D. La., 3/28/11).

Mr. Morel was employed by BP as a drilling engineer on the Macondo Well.  Plaintiffs and several defendants wanted to depose him.  The witness asserted the marital privilege as to certain email communications which were produced by BP to the Plaintiff Steering Committee. He contended that 93 documents containing email communications between himself and his wife should be returned to him or destroyed. His wife was a production engineer for BP, with no duties relating to the well. 

All of the email communications at issue were made through their BP email accounts. But the witness urged that: (1) BP permitted the personal use of company email; (2) it did not indiscriminately or randomly monitor its employees’ emails; (3) no third party other than BP had a right to access Mr. Morel’s email account.  The court framed the issue as whether BP’s notification
statements and email policies were sufficient to defeat Mr. Morel’s assertion of the marital privilege over the emails.

BP computer screens included the statement that “[w]ithin the bounds of law, electronic transmissions through internal and external networks may be monitored to ensure compliance with internal policies and legitimate business purposes."  BP’s Code of Conduct Policy provided that: Personal data, information or electronic communications created or stored on company computers or other electronic media such as hand-held devices are not private.

Mr. Morel, however, argued that the determination of privilege should not be made on the basis of the written BP policies but on how those policies were implemented.

There are a number of cases finding that when an employer has a rule prohibiting personal computer use, an employee cannot reasonably expect privacy in their prohibited communications.   Miller v. Blattner, 676 F.Supp.2d 485 (E.D.La. 2009); Thygeson v. U.S. Bankcorp, 2004 WL 2066764 (D. Or.); Kelleher v. City of Reading, 2002 WL 1067442, *8 (E.D. Pa.).

BP had no such prohibition, but BP notified its employees that electronic communications could
be monitored and accessed by BP. There are a few cases indicating that policies short of a prohibition of personal use can defeat an expectation of privacy. Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002); United States v. Etkin, 2008 WL 482281 (S.D.N.Y); Sims v. Lakeside School, 2007 WL 2745367, *1 (W.D. Wash.).

Based on these cases, this court found that it was not objectively reasonable for an employee to have an expectation of privacy where the employers’ policies clearly demonstrate that the employee’s electronic communications may be monitored and accessed by the employer; and thus they were subject to production by a subpoena.
 

E-Discovery Relief?: Congress Passes Bill To Reduce Risk Of Inadvertant Disclosure Of Privileged Material

Congress has passed and sent to the President a bill that amends the Federal Rules of Evidence with respect to the disclosure of a communication or information covered by the attorney-client privilege or work product protection. The bills S. 2450/H.R. 6610 limit the effect of inadvertent disclosure of privileged materials. The Senate passed S.2450 in February, 2008, and the House passed the identical H.R. 6610 last week.

One unfortunate aspect of the new e-discovery rules has been a tremendous cost due to the need to review ESI, particularly emails, to make sure that privileged information is not given to the other side. Mass tort defendants, in particular, must often sift through a mountain of documents to ensure that privileged material is not inadvertently released. While most documents produced during discovery have little value, attorneys must still conduct exhaustive reviews to prevent disclosures of the needle in a haystack that reveals confidential information. The cost to litigants is staggering and the time consumed by courts to supervise these activities can get excessive.

The bill impacts this problem not by changing the law on the attorney-client privilege or the work product doctrine, but by modifying the consequences of an inadvertent disclosure once a privilege exists, through creation of new Federal Rule of Evidence 502. The federal rules committees studied this problem in connection with various proposals to change the discovery rules. The rules committee concluded that the need for exhaustive preproduction privilege reviews could be significantly reduced if the risks of waiver were clarified and limited, and thus recommended the bill’s changes.

The bill provides that, in new Rule 502(a), when a disclosure is made in a federal proceeding (or to a federal office or agency), and that disclosure waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. When the disclosure is made in a federal proceeding (or to a federal office or agency), under new Rule 502(b), it does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. 

Maybe a small step in the right direction.