Pennsylvania Expands Attorney Work-Product Protection for Disclosures to Third Parties

lehmanj_thumb
Jane Fox Lehman

Construction disputes frequently require companies to engage third-party consultants to analyze and opine on such issues as delays, defects in workmanship or materials, and deficiencies in payment— even before they anticipate litigation.  Construction companies should keep in mind that materials they provide consultants, and materials that consultants generate, can in certain circumstances be discoverable in any subsequent litigation of the disputes.  Companies should always be especially cautious when sharing materials that contain their inside or outside counsel’s legal advice with third parties, including consultants, as this can waive the attorney-client privilege that would otherwise protect this advice from discovery.  But companies working on Pennsylvania projects can take heart from a recent decision of the Pennsylvania Supreme Court that expands the attorney work-product protection for materials shared with third-party consultants: such materials may be protected from discovery under Pennsylvania law so long as they were not shared with dispute adversaries, or in a way that “significantly increases the likelihood” that those adversaries would discover them.

 

The Prague Rules: What U.S. Practitioners Need to Know About the Civil Law World’s Answer to the IBA Rules on the Taking of Evidence in International Arbitration

Published in The Construction Lawyer, Volume 39, Number 1 Winter 2019. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

torresr_thumb
Zachary Torres-Fowler

EXCERPT:

This article attempts to introduce the Prague Rules to U.S.-based practitioners, including practitioners operating within the construction field, by highlighting how the Prague Rules compare to procedures that common law practitioners are more familiar with, and what considerations parties should keep in mind when assessing the costs and benefits of applying the Prague Rules to their disputes. This piece consists of three parts. First, this article introduces some of the more commonly accepted practices seen in international arbitrations concerning the taking of evidence, including the practices set out in the IBA Rules. Second, this article compares and contrasts the IBA Rules and the Prague Rules. Third, this article sets out the considerations U.S.-based firms should keep in mind when assessing how the Prague Rules could impact their international arbitration disputes.

A PDF of the full article is available here.

Global Arbitration Review Know-How Construction Arbitration – United States

 

Albert Bates photo
Albert Bates, Jr.
torresr_thumb
R. Zachary Torres-Fowler

Pepper Hamilton attorneys Albert Bates and R. Zachary Torres-Fowler contributed the United States Construction Arbitration chapter to the Global Arbitration Review (GAR) Know-How series. Launched in 2006, GAR is a leading resource on international arbitration news and community intelligence.

The GAR Know-How series — an online Q&A resource that provides practitioners with guides on various dispute types — invites leading practitioners from key jurisdictions around the globe to answer common questions on topics relevant to international construction arbitration. In the United States Construction Arbitration chapter, Mr. Bates and Mr. Torres-Fowler, summarize the high-level issues commonly raised during international construction arbitrations located in the United States or governed by U.S. laws. The U.S. Construction Arbitration chapter should be a valuable resource for those seeking to better understand the interplay between U.S. laws and international construction arbitration.

Read the full Q&A at https://globalarbitrationreview.com/jurisdiction/1006134/united-states.