A new opinion from the Pennsylvania Superior Court says that an opposing party can subpoena from an expert who will be testifying in a case the correspondence that the witness had with the attorney who retained him or her. Generally, when a request for discovery asks for correspondence coming from an attorney, an objection will be raised that this is privileged attorney work product. There is a rule of civil procedure that protects the mental impressions and work product of an attorney representing a party in a case from having to be disclosed. However, there is also a rule which allows discovery of material regarding the opinions of an expert and the facts underlying those opinions. In the case of Barrick v. Holy Spirit Hospital of Sisters of Christian Charity, the defense sought the correspondence between the plaintiff's attorney and the expert to examine whether and how the attorney was affecting the opinion of the expert. The Superior Court ruled that the interest in obtaining the information about the expert's opinion on which he or she will testify takes priority over protecting attorney work product. This opinion was issued on September 16. It remains to be seen whether the plaintiffs in the case will attempt to appeal to the Pennsylvania Supreme Court. The lesson for attorneys using expert witnesses is to avoid written correspondence with expert witnesses about the substance of their opinions and testimony. Any such communications should only be oral and should not be recorded. Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.
The Texas appeals court held that given this provision, Texas courts cannot grant a divorce to a same-sex couple because Texas law does not recognize the existence of a marriage to dissolve by divorce in the first place. The court did not that in the statute regarding divorces that a person can bring an action to declare a marriage void but that the plaintiff in this matter did not seek a declaration that the marriage was void but a divorce to dissolve the marriage. The court would not permit this because Texas law does not recognize the marriage to exist in the first place.The plaintiff in the case attempted to argue that the marriage should be recognized under principles of comity. Essentially, comity is a practice in which one sovereign, as a matter of mutual respect, will honor the laws of another sovereign. The Texas court held that while comity is a common practice, it will not be applied if the result would be contrary to Texas public policy. The plaintiff argued that there was case law in New York which has not legalized same-sex marriage but that such marriages in other states could be recognized on comity grounds. The Texas court distinguished those cases by noting that New York has not passed a law explicitly outlawing same-sex marriage as Texas has so while recognition might not be against New York public policy, it would be against Texas public policy.The Texas appeals court also held that same-sex couples are not part of a protected class such that there was violation of the 14th Amendment provisions of the U.S. Constitution concerning equal protection and due process. This puts the Texas ruling at odds with the federal court ruling in Perry v. Schwarzenegger, the case challenging California's Proposition 8. The current federal court ruling striking down Proposition 8 on 14th Amendment grounds has no impact on Texas yet and would not unless and until the U.S. Supreme Court were to uphold it the U.S. Supreme Court a lower federal court which has jurisdiction over Texas were to so rule.Going forward, I would expect that this ruling will stand in Texas courts. A more likely avenue for overturning that would seem to be the Perry case or another federal case going to the U.S. Supreme Court and ruling that denial of same-sex marriage would violate the 14th Amendment. Or, another possibility could come out of a future challenge to the federal Defense of Marriage Act (DOMA) provision that allows states to not recognize same-sex marriages from other states.(a) Marriage in this state shall consist only of the union of one man and one woman.(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.Tex. Const. art. I, § 32.