Rhode Island Bar Journal
61 RI Bar J., No. 2, Pg. 5.
Experts and the Discovery/Disclosure of Protected Communication
Rhode Island Bar Journal 61 RI Bar J., No. 2 September / October 2012 Experts and the Discovery/Disclosure of Protected Communication George E. Lieberman, Esq.Vetter and White, Providence, Conservation Law Foundation Staff Attorney
An issue of significant importance is the interrelationship between the Federal Rules of Civil Procedure (Fed. R. Civ. P.), and the Federal Rules of Evidence (FRE), and how that interrelation impacts discovery before trial and disclosure at trial of attorney-client communications and attorney work product material. The courts have taken different views on the questions raised in this area.(fn1) Further, Fed. R. Civ. P. 26 makes this issue of discovery, and what is considered privileged protected information and material, even more acute and pressing.
A ruling compelling pretrial discovery or production/disclosure or a preclusion order may well mean the difference between winning and losing a lawsuit. Consequently, we need to recognize the issues, be knowledgeable concerning the decisions concerning those issues, and be sensitive as to how best to proceed.
In Sections II through IV below, the case law preceding the December 1, 2010 amendments to the Fed. Rs. Civ. P. directed to the issue of discovery of communications between counsel and her expert is explored. In Section V, the Fed. Rs. Civ. P. December 2010 amendments and how those amended rules impact the scope of expert discovery are examined.
Fed. R. Civ. P. 26(b)(3) protects work product of both the attorney and the party. A showing of substantial need is required before production will be ordered. Note: the rule refers to documents only. Are oral communications discoverable? Are they given more, less or the same protection?(fn2)
Concerning "mental impressions, conclusions, opinions or legal theories of an attorney or a party." the ".courts shall protect against disclosure."(fn3) This type of material has been referred to as core or opinion work product. Is it discoverable, and, if so, under what standard?(fn4) FRE 501 looks to common law and, in cases decided by state law, to state law to determine what constitutes privileged communication. Most states consider attorney-client communication as privileged.
Losing the Privilege/Protection
Let us examine how the discovery/disclosure issues arise. You are assisting/preparing your witness and having her or him formulate an opinion. You obviously talk to the witness and share documents. Have you relayed attorney-client communications? Have you provided some of your opinions, thoughts, mental impressions? Have you given the witness some work product documents? Have you orally communicated attorney-client communications? Are these discoverable? Under what procedural or evidentiary rules might your opponent claim they are? And, under what circumstances might they be discoverable, i.e., has the expert relied upon/considered the information given to her or him in formulating an opinion? And when are they discoverable? During pretrial proceedings? At trial? At both stages? Are the rules governing production/disclosure the same during both trial and pretrial proceedings?
These issues are raised because you have provided, either in written or oral form, sensitive information to your expert. If you have not done so, the issue of discovery/disclosure would not have arisen. Moreover, if you have not provided sensitive information, such as attorney-client communication or work product, but documents available to the other side, and there is no question of core work product being disclosed as a result of your selection of the documents, you probably do not care whether such documents are provided, or provided again.
The various issues can and should be identified. Did the expert rely upon/consider the information in reaching an opinion? Did the expert or lay witness use it to refresh a personal recollection before testifying or while testifying? At a deposition? At trial? Is the material at issue in written or oral form? Is the information/document within the ambit of the attorney-client privilege or work product doctrine, or both? If work product, is it core work product?
An important, indeed critical, question is whether the expert relied upon or considered the information in reaching an opinion, i.e., are there facts or data upon which she or he relied or which considered in reaching an opinion? If not, even courts inclined to order production/disclosure probably will, and should, not.(fn5)
Fed. R. Civ. P. 26(a)(2)(B) requires that a party provide a report disclosing, in detail, the opinions to which the expert is expected to testify and the basis for such opinions. FRE 705 provides an expert may be required to disclose the facts or data upon which her or his opinion rests during cross-examination. Cross-examination may include a deposition of an expert since the "[e]xamination and cross-examination [during depositions] may proceed as permitted at trial under the . . . Federal Rules of Evidence. . . ."(fn6) The Boring court did not invoke FRE 612 as the basis for its decision.(fn7)
In Derderian v. Polaroid Co.,(fn8) the court denied a request for production of documents falling within the attorney-client privilege and work product doctrine even though such documents were reviewed by the expert before the deposition. The court believed the examining party would get the information it...