Discoverability of Attorney Communications With Testifying Experts
June 11, 2007
Simon B. Auerbach- Chicago
Rule 26 of the Federal Rules of Civil Procedure sets forth a framework regarding discovery and duties of disclosure. This framework encompasses, and causes an interplay between, attorney work product and required disclosures by testifying experts. Prior to 1993, the discoverability of attorney communications with experts was subject to varying interpretations, but most courts generally protected the attorney opinion work product. In other words, Rule 26 did not authorize the discovery of attorney opinion work product, even when it was given to testifying experts. Regional Airport Authority of Louisville v. LFG, LLC, Navistar Int’l Trans. Corp., 460 F.3d 697, 713 (6th Cir. 2006); Contra Karn v. Ingersoll-Rand, 168 F.R.D. 633, 636 (N.D. Ind. 1996).
In 1993, however, Rule 26 was amended. Since that time, two distinct approaches have developed as to whether attorney work product given to a testifying expert is subject to disclosure. These two approaches, coined as the majority and minority approaches, are elaborated on below.
Defining Work Product
In 1947, the United States Supreme Court articulated the attorney-work-product doctrine in Hickman v. Taylor, 329 U.S. 495, 510 (1947)(providing that “not even the most liberal of discovery theories can justify unwarranted inquiries into the files and mental impressions of an attorney.”). This doctrine, codified in Rule 26(b)(3), provides that documents and tangible things prepared in anticipation of litigation are discoverable if the party seeking discovery has a substantial need of the materials and the party is unable, without undue hardship, to obtain the substantial equivalent. If the requesting party can make this showing, the court nevertheless will protect against “disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Fed. R. Civ. P. 26(b)(3); Herman v. Marine Midland Bank, 207 F.R.D. 26, 29 (W.D.N.Y. 2002)(defining “ordinary” work product and “core” work product). The interesting discussion, however, lies in how the protection afforded attorney work product in Rule 26(b)(3) simultaneously exists with the expert disclosures required in Rule 26(a)(2).
The Majority Approach
The majority of courts examining Rule 26 after the 1993 amendments have found that a bright-line rule exists such that all information provided to testifying experts, including attorney opinion work product, must be disclosed. Courts supporting this approach reference the language in Rule 26(a)(2)(B) that states, “with respect to a witness who is retained or specially employed to provide expert testimony,” parties are required to disclose “the data or other information considered by the witness in forming the opinions.” Fed. R. Civ. P. 26(a)(2)(B)(emphasis added). These courts attempt to bolster this finding by examining the 1993 Federal Rules Advisory Committee Notes. Ingersoll-Rand Co., 168 F.R.D. at 638. The Advisory Notes provide that:
Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions – whether or not ultimately relied upon by the expert – are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.
Courts have also asserted that a bright-line rule is supported by public policy considerations. See e.g., In re Gall v. Jamison, 44 P.3d 233, 239 (Colo. 2002). Indeed, the courts reason that a bright-line rule will increase efficiency and fairness while minimizing waste of judicial resources. Id. With this rule, trial courts will avoid having to repeatedly review expert communication in camera to determine whether disclosure is warranted.
The Minority Approach
Other courts have determined that attorney opinion work product is not discoverable simply because it has been given to a testifying expert. See e.g., Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 292-96 (W.D.Mich. 1995); LFG, LLC, Navistar Int’l Transp. Corp., 460 F.3d at 714 (listing cases following the minority approach). After reviewing the 1993 Advisory Committee Notes, the Haworth court determined that attorney opinion work product is a high privilege and that no “clear and unambiguous language” exists such that the privilege is rendered inapplicable. Id. at 295. As a result, these courts contend that attorney opinion work product disclosed to experts remains privileged from discovery.
Conclusion
An excellent example of caution is provided to practitioners by the Rhode Island Supreme Court’s opinion in Crowe Countryside Realty Associates, Co., LLC v. Novare Engineers, Inc., 891 A.2d 838, 840 (R.I. 2006). The Rhode Island Supreme Court initially notes that Rule 26 of the Superior Court Rules of Civil Procedure in Rhode Island used the 1970 version of Federal Rule 26 as a template and not the 1993 Rule as amended. Upon examining the 1970 version of Federal Rule 26, the Rhode Island Supreme Court rejected the idea that any information shared with an expert is therefore discoverable. Id. at 848. Instead, the Rhode Island Supreme Court outlined that trial judges should examine the communications between attorneys and testifying experts and make independent determinations as to what constitutes factual or opinion work product and if protection is necessary. Id.
The Rhode Island Supreme Court’s discussion of expert disclosures provides a reminder that it is imperative for state court practitioners to determine the applicable rule before any substantive exchange of information occurs with an expert.
For more information, e-mail Simon Auerbach at simon.auerbach@hklaw.com or call toll free, 1-888-688-8500.