Section 4003.3. Scope of Discovery. Trial Preparation Material Generally

Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, 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.

The provisions of this Rule 4003.3 adopted November 20, 1978, effective April 16, 1979, 8 Pa.B. 3551; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2281. Immediately preceding text appears at serial pages (209475) to (209476).

Notation

Explanatory Note

The amended Rule radically changes the prior practice as to discovery of documents, reports and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent.

Former Rule 4011(d) expressly prohibited such discovery. The amended Rule permits it, subject to the limitation that discovery of the work product of an attorney may not include disclosure of the mental impressions, conclusions, opinions, memoranda, notes, legal research or legal theories of an attorney. As to any other representative of a party, it protects the representative’s disclosure of his mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. Memoranda or notes made by the representative are not protected.

The essential purpose of the Rule is to keep the files of counsel free from examination by the opponent, insofar as they do not include written statements of witnesses, documents or property which belong to the client or third parties, or other matter which is not encompassed in the broad category of the ‘‘work product’’ of the lawyer. Documents, otherwise subject to discovery, cannot be immunized by depositing them in the lawyer’s file. The Rule is carefully drawn and means exactly what it says. It immunizes the lawyer’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories, nothing more.

There are, however, situations under the Rule where the legal opinion of an attorney becomes a relevant issue in an action; for example, an action for malicious prosecution or abuse of process where the defense is based on a good faith reliance on a legal opinion of counsel. The opinion becomes a relevant piece of evidence for the defendant, upon which defendant will rely. The opinion, even though it may have been sought in anticipation of possible future litigation, is not protected against discovery. A defendant may not base his defense upon an opinion of counsel and at the same time claim that it is immune from pre-trial disclosure to the plaintiff.

As to representatives of a party, and sometimes an attorney, there may be situations where his conclusions or opinion as to the value or merit of a claim, not discoverable in the original litigation, should be discoverable in subsequent litigation. For example, suit is brought against an insurance carrier for unreasonable refusal to settle, resulting in a judgment against the insured in an amount in excess of the insurance coverage. Here discovery and inspection should be permitted in camera where required to weed out protected material.

In two respects the amended Rule differs materially from Fed. R.Civ.P. 26(b)(3). First, the Federal Rule permits discovery only when the party seeking discovery shows substantial need of the materials in the preparation of his case and is unable, without undue hardship, to obtain a substantial equivalent of the materials by other means. Under the general provisions of Rule 4003.3, such a showing of substantial need and undue hardship will not be required. Note, however, that under Rule 4003.5(a)(3), governing discovery of opinions of an expert who is not expected to be called as a witness at trial, a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions on the subject matter by other means is required.

The federal draftsmen have justified the special showing of need on the ground that ‘‘each side’s informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side.’’ The Committee, after long and careful deliberation, rejected this view which would impose more court time on lawyers and additional burdens on judges in the motion court. At the same time it also rejected a proposal to go to the opposite extreme and direct the mandatory exchange of all pretrial material, statements, medical reports and experts’ reports under penalty of sanctions.

Second, the work product protection of the Rule distinguishes between that afforded the attorney and that afforded the party’s representative. They are on an equal footing under the Federal Rules. The Committee viewed the work product privilege enunciated by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), as stating a special rule applicable to lawyers which need not necessarily be the same as that applied to other representatives, particularly insurance investigators. Under the Rule, a lawyer’s notes or memoranda of an oral interview of a witness, who signs no written statement, are protected but the same notes or memoranda made by an insurance investigator will not be protected. A signed statement of the witness is, of course, always discoverable, no matter who took it or where it is filed.