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Experts Retained in Anticipation of Litigation Can Be Discoverable

November 17, 2021
March 30, 2020

A workplace accident occurs in an industrial setting where an employee is seriously injured in a manner that is not immediately apparent.  It is not uncommon for an investigation to occur to determine why the incident happened and how to prevent such incidents from occurring in the future.  These investigations can be internal to the company where outside consulting experts are brought in to weigh in on what happened.  

If litigation is commenced for the original incident, is the ensuing investigation by the consultants protected from discovery?  What if the investigation was handled by attorneys and involved experts retained in anticipation of litigation who are not expected to testify at the time of trial?  To the uninformed, involvement of an attorney and the presence of buzzwords like “in anticipation of litigation” might create the belief that such work is protected from discovery in a civil lawsuit for the original incident.  The issue, however, is more complicated and failure to take the correct precautions in such investigations could lead to the materials being discoverable.

This exact issue arose in civil litigation stemming from a fatal incident occurring on July 17, 2015, at a pharmaceutical plant in Conshohocken, Pennsylvania.  The complaint alleges that the decedent was exposed to excessive levels of nitrogen causing him to lose consciousness and fall from height while working on an industrial-grade pressure filter dryer.  Within 5 days of the incident, the employer and its related companies retained the services of an outside consulting firm to conduct a site safety investigation and determine the cause of the decedent's fatal accident.  In-house counsel for the employer quickly became involved and served as the coordinating lead contact with the consulting firm for their investigation.  After several months, the findings were ultimately prepared into a report by the consulting firm.  

Within roughly two weeks of the incident, the employer received notice from counsel representing the decedent’s family that they were retained, and a civil action was commenced by November 2015.  As the civil litigation proceeded to discovery, the content of the consulting firm’s report and its conclusions regarding the incident became a focal point even though the report was never produced and the consulting firm was not identified as an expert witness to testify at trial.  The issue proceeded to motion practice where Judge Younge of the Philadelphia Court of Common Pleas ordered the report of the consulting firm to be produced.  Due to concerns of privilege, an immediate appeal to the Pennsylvania Superior Court followed.

Pennsylvania Rule of Civil Procedure 4003.5 provides that 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.”  

In reviewing the issue, the Superior Court ultimately remanded the issue back to the lower court for further findings because it was not clear from the record what Judge Younge relied upon in ordering the report of the consulting firm to be produced.  The Superior Court did note that the arguments in favor of mandating the production of the report cited to the use of the consulting expert report for uses other than “in anticipation of litigation” such as negotiating with OSHA to reduce the penalty citations and for developing future changes to company policy to avoid recurrence of such incidents.  These other uses of the consulting expert report raise the question of whether the expert was retained solely in anticipation of litigation, or whether the expert was retained for a variety of reasons, some of which included sharing the findings with others, such as OSHA, that would also destroy any attorney-client privilege protections in place by virtue of counsel handling the process.  

After the issue was remanded to the lower court for development of the record, the consulting expert report was again ordered to be produced in discovery.  The employer has again appealed the issue, which is presently under consideration by the Superior Court.  

From the various judicial opinions and appeals, it is clear that protections for expert opinions are not absolute.  Simply because a consultant is retained through an attorney and/or retained in anticipation of litigation, with no intention to have the consultant testify at any trial, does not render the findings of the consultant non-discoverable in civil litigation.  On the contrary, the use of the consulting expert's report will determine whether it is discoverable, and multifaceted use of any such report could place it into the realm of discovery.  The expenditures in navigating these waters, as well as the ultimate cost if the consulting expert report and its opinions on how to prevent such an incident from recurring become discoverable, cannot be underestimated.