Seminar given 1/26/11 on Federal and Pennsylvania law on Attorney-Client Privilege and Expert Witness Disclosures

1. Keeping Secrets:
Recent Developments in
Attorney-Client Privilege and
Expert Witness Disclosure Rules
January 26, 2011
Presented by
Manko, Gold, Katcher & Fox
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2. Introduction
Jonathan H. Spergel, Esq.
Partner, MGKF
Suzanne Ilene Schiller, Esq.
Partner, MGKF
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3. Program Overview
 Attorney-Client Communications
 Federal Law
 Pennsylvania Law
 Best Practices
 Attorney-Expert Communications
 Federal Law
 Pennsylvania Law
 Best Practices
 Q&A
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4. Attorney-Client Communications
Federal Law
F.R.Civ.Proc. 501:
“. . . . [T]he privilege of a witness . . . shall be governed by the
principles of the common law as they may be interpreted by the
courts of the United States in light of reason and experience.
However, in civil actions and proceedings, with respect to an
element of a claim or defense as to which State law supplies the
rule of decision, the privilege . . . shall be determined in
accordance with State law.”
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5. Attorney-Client Communications
Federal Common Law
 Communication must be between attorney and client
 Communication must be for the purpose of obtaining or providing
legal advice
 Only the communication pertaining to the legal advice – not the
underlying facts – is privileged
Leading case: Upjohn Co. v. United States, 449 U.S. 383 (1981)
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6. Attorney-Client Communications
Pennsylvania Law
42 Pa.C.S. § 5928:
“In a civil matter counsel shall not be competent or
permitted to testify to confidential communications made
to him by his client, nor shall the client be compelled to
disclose the same, unless in either case this privilege is
waived upon the trial by the client.”
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7. Attorney-Client Communications
Pennsylvania Law (cont’d)
“[The] attorney-client privilege protects from disclosure
only those communications made by a client to his or
her attorney which are confidential and made in
connection with the providing of legal services or
advice.”
Nationwide Mutual Insurance Co. v. Fleming, 924 A2d 1259 (Pa. Super.
2007), aff’d 2010 Pa. LEXIS 40 (January 10, 2010)(equally divided court)
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8. Attorney-Client Communications
Pennsylvania Law (cont’d)
Philadelphia Court of Common Pleas:
“Attorney-client privilege is perhaps a misnomer, since
only the client’s statements enjoy a privilege.
Communications of the attorney, on the other hand, are
not privileged, except to the narrow extent to which
they reveal communications made by the client.”
Kennedy v. Yamaha Motor Corp., 210 Phila. Ct. Com. Pl. LEXIS 24
(2010)(Manfredi, J.)
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9. Attorney-Client Communications
Pennsylvania Law (cont’d)
Philadelphia Court of Common Pleas:
The attorney-client privilege “covers only factual
communications from a client to her attorney. It is
extended to communications from an attorney to a client
only if, and only to the extent that, those communications
from the attorney reveal the client’s confidential factual
communications.”
Kolar v. Preferred Unlimited, Inc. 14 Pa. D. & C. 5th 166 (2010)
(Bernstein, J.)
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10. Attorney-Client Communications
Pennsylvania Law (cont’d)
Gillard v. AIG Insurance, 947 A. 2d 836 (Pa. Super. 2008)
Pa Supreme Court heard argument on:
• Whether the attorney-client privilege applies to communications
from the attorney to the client.
• Whether the Superior Court erred in holding the attorney-client
privilege applies only to confidential communications from the
client to the attorney, pursuant to Nationwide Mutual Insurance
Company v. Fleming, 924 A.2d 1259 (Pa. Super. 2007).
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11. Attorney-Client Communications
Best Practices
 Scope of privilege in Pennsylvania is unsettled; attorney
must assume his/her communications to client may be
produced.
 Written attorney communications should clearly identify that
they are in response to confidential information
communicated by the client in an effort to seek legal advice.
 Attorney communications to client should be clearly
identified as confidential and privileged, subject to attorney-
client communications and attorney work product doctrine.
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12. Attorney-Client Communications
Best Practices (cont’d)
 Be cognizant of size of distribution list
 In house attorney acting as business person vs. lawyer
 Verbal vs. written communications: potential conflict
between attorney’s self-interest and interest in avoiding
document disclosure
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13. Attorney-Expert Communications
Federal Law
F.R.Civ.Proc. 26(a)(2) requires disclosure of:
 The identity of the expert
 For witnesses not required to provide a report, the subject matter
of testimony and summary of facts and opinions
 For witnesses requires to provide a report,
 A complete statement of the opinion and the basis and reasons for them
 The facts or data considered by the witness
 Any exhibits that support the opinion
 The witness’ qualifications, publications, prior testimony, and
compensation
 Depositions permissible without Court order under F.R.Civ.Proc.
26(b)(4)
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14. Attorney-Expert Communications
Federal Law (cont’d)
Who Must Provide Report
 Witness “is one retained or specially employed to provide expert
testimony in the case or one whose duties as the party’s
employee regularly involve giving expert testimony.”
F.R.Civ.Proc. 26(a)(2)(B)
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15. Attorney-Expert Communications
Federal Law (cont’d)
Protection of Trial Preparation Materials
 Prepared in anticipation of litigation
 United States v. Textron Inc., 577 F.3d 21 (1st Cir. R.I. 2009)(en banc)
 Mental impressions, conclusions, opinions, or legal theories
 Draft reports
 Communications with Expert except as to:
 Compensation
 Facts or data relied upon
 Assumptions
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16. Attorney-Expert Communications
Pennsylvania Law
Pa.R.Civ.Proc. 4003.5 allows discovery of:
 The identity of the expert
 The subject matter of the testimony
 The substance of the facts and opinions
 Further discovery only by Court order upon a showing of good
cause
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17. Attorney-Client Communications
Pennsylvania Law (cont’d)
“To test the weight and veracity of Dr. Green’s ultimate conclusions,
Appellees are entitled to discovery the extent of counsel’s influence
over Dr. Green’s opinions and whether counsel directed Dr. Green
to reach certain conclusions or to disregard certain facts or take
other facts into consideration. In other words, Appellees are entitled
to discovery information which would enable them to ascertain
whether Dr. Green’s opinions are his own or whether he merely
intended to parrot what he was told by counsel.”
Barrick v. Holy Spirit Hospital, 2010 Pa. Super. 170 (Sept. 16, 2010).
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18. Attorney-Expert Communications
Best Practices
 Will state procedure or federal procedure apply? May not know,
so must assume least common denominator (PA procedure)
applies.
 Retention letter issues; non-testifying versus testifying expert
 Concerns with converting non-expert consultants to expert
witnesses.
 Treatment of draft reports; attorney input
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19. Questions or Further Information
Suzanne Ilene Schiller
(sschiller@mgkflaw.com)
Jonathan H. Spergel
(jspergel@mgkflaw.com)
Manko, Gold, Katcher & Fox LLP
401 City Avenue, Suite 500
Bala Cynwyd, PA 19004
(484) 430-5700
www.mgkflaw.com
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