Dr. Phil, where are you? We want discovery.

AuthorSimpson, Jim
PositionPhil McGraw

Writing in the December issue of the newsletter of the Advocacy, Practice and Procedure Committee. Jim Simpson and Jamie Huffman Jones of Eldredge & Clark, Little Rock, look at the interplay between the work product doctrine and expert disclosure:

In high-stakes litigation, more and more attorneys are seeking the advice of trial consultants when making decisions on juries or in preparing a key witness for trial. Often the trial consultants are privy to the inner workings of counsel's legal theories and strategies. An important dilemma arises when a non-testifying trial consultant is used. Is the work product of the consultant discoverable?

The confusion over the answer arises from the tension in Rule 26 of the Federal Rules of Civil Procedure between the work product doctrine and the expert disclosure rule. The work product doctrine supports a policy favoring the expectation of privacy that an attorney and a trial consultant have when discussing litigation strategy. Under the work product doctrine, it will be seldom, if ever, that opposing counsel will be able to discover such information. On the other hand, the expert disclosure rule supports a policy favoring discovery, as that increases the likelihood of effective cross-examination. Thus, under the expert disclosure rule, opposing counsel will be able to discover the information under certain circumstances. The language of Rule 26 does not make it clear which policy--pro-privacy or pro-discovery--should prevail.

The courts have struggled with this question. While the federal district courts are split as to the discoverability of such work product (see Adler v. Shelton, 778 A.2d 1181, 1187 (N.J. Super 2001), the Third Circuit has held in In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3d Cir. 2003), that the work product of a on-testifying trial consultant is subject to the discovery limits imposed by the work product doctrine. Attorneys should be aware of this debate before discussing strategy with a trial consultant.

What's the answer?

The federal discovery rules are designed to enable litigants obtain the fullest possible knowledge of the issues and facts before trial, but this policy is tempered by privacy oriented rules such as the work product doctrine. The language of Rule 26 does not make it clear which rule trumps when a conflict occurs.

The work product doctrine was announced by the U.S. Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). It "shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case," and it is broader and distinct from the attorney-client privilege. United States v. Nobles, 422 U.S. 225, 238 (1975). The Hickman Court noted that "it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel."

Rule 26(b)(3) codifies the work product doctrine:

Trial Preparation; Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, of agent) only upon showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable to without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court...

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