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Got Privilege? Think Again (PA)

March 5, 2021

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<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2021/03/Virnelson.pdf">Virnelson</a> v. Johnson Matthey</em>, the Pennsylvania Superior Court addressed whether the defendants were required to disclose an on-site investigative report prepared by an engineering consultant after an accident.</p>
<p style="text-align: justify;">The plaintiff in this matter fell to his death after he inhaled excessive levels of nitrogen. Five days later, the defendants retained an engineering consultant to perform a site safety inspection and determine the accident cause. Following its investigation, the consultant prepared a report. Shortly after the report was completed, counsel for the plaintiff sent notice to defendant advising of his representation and later filed suit.</p>
<p style="text-align: justify;">During litigation, plaintiff sought disclosure of the report, as well its supporting documents and interviews, and eventually filed a motion to compel, arguing the report was not prepared in anticipation of litigation. The trial court granted the motion and defendants appealed.</p>
<p style="text-align: justify;">On appeal, the defendants argued that the report was non-discoverable as expert material retained and prepared in anticipation of litigation. Under Pennsylvania Rule of Civil Procedure 4003.5(a)(3), “[A] party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial,” except in exceptional circumstances by order of the court.</p>
<p style="text-align: justify;">The Pennsylvania Superior Court disagreed with the defendants, finding that the investigative report was discoverable. In support of its ruling, the Court relied upon deposition testimony by defendants’ employees stating that the report was prepared to examine and implement changes in safety protocols, as well as the non-privileged nature of the consultant’s retainer. For those reasons, the Court determined the report was prepared for a business purpose and not in anticipation of litigation, noting that foreseeability of litigation alone does not preclude discovery.</p>
Thanks to Benjamin Ferrell for his contribution to this post. Please contact <a href="mailto:Haquino@wcmlaw.com">Heather Aquino</a> with any questions.

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