Experts and the discovery/disclosure of protected communication.

Author:Lieberman, George
 
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THE COMPLICATED relationship between the Federal Rules of Civil Procedure and the Federal Rules of Evidence impacts discovery before trial and disclosure at trial of attorney-client communications and attorney work product material related to expert witness testimony. Courts have taken different views on the questions raised in this area, particularly concerning whether communications must be produced, as well as the scope and contours of such production. (1) Fed. R. Civ. P. Rule 26 makes this issue of discovery even more acute and pressing, particularly the question what materials are considered privileged protected information. A ruling compelling pretrial discovery or production/disclosure or a preclusion order may well mean the difference between winning and losing a lawsuit. Consequently, practitioners should be able to recognize the issues, be knowledgeable concerning the decisions concerning those issues, and be sensitive to how best to proceed.

This article addresses various problems that have arisen concerning the question of disclosure of attorney work product material. Sections I through III below explore the case law preceding the December 1, 2010 amendments to Rule 26 directed to the issue of discovery of communications between counsel and her expert. Section IV examines the December 2010 amendments to the Federal Rules and how those amended rules impact the scope of expert discovery.

  1. Protected Communication

    Fed. R. Civ. P. Rule 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. (2) However, the plain language of the rule refers to documents only. Are oral communications discoverable? Are they (or should they be) given more, less or the same protection? Some existing case law suggests that both documents and oral communication may be equally discoverable. (3)

    The "mental impressions, conclusions, opinions or legal theories of an attorney or a party," have been referred to as core or opinion work product, and Rule 26 generally provides that the "courts shall protect against disclosure." (4) Is this type of material discoverable? And if so, under what standard? In Upjohn v. United States, (5) the Supreme Court granted "special protection" to core work product without (1) ruling whether core work product is always protected or (2) articulating a detailed standard. Fed. R. Civ. P. Rule 26(b)(1) also protects against discovery of "privileged" communications. Rule 501 of the Federal Rules of Evidence looks to applicable Federal common law and, in cases decided by state law, to state law to determine whether a communication is privileged communication. (6) The laws of most states consider attorney-client communication as privileged.

  2. Losing the Privilege

    An example will allow us examine how the discovery/disclosure issues often arise. As you assist and prepare an expert witness and request her to formulate her opinion, you obviously will talk to her and share documents. Questions that arise from these common activities include:

    * Have you relayed attorney-client communications?

    * Have you provided some of your opinions, thoughts, mental impressions?

    * Have you given her 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 in formulating her opinion?

    * 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 questions arise 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 (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.

    Further distinctions can and should be identified. One important, indeed critical, distinction considers whether the expert relied upon or considered the information in reaching her opinion, i.e., are there facts or data upon which she relied or which she considered in reaching her opinion? If not, even courts inclined to order production/disclosure probably will (and should) not. (7) Fed. R. Civ. P. Rule 26(a)(2)(B) requires that a party must provide a report disclosing in detail the opinions to which the expert is expected to testify and the basis for such opinions. Federal Rules of Evidence Rule 705 provides that an expert may be required to disclose the facts or data upon which her opinion rests during cross-examination. "On 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...." (8) In Boring, (9) the court ordered protection of documents, including opinion work product which the expert had identified as being used to prepare him for his deposition on the basis that such production was essential to the preparation of a case and necessary for the purpose of effective impeachment and corroboration. The Boring court did not invoke Federal Rules of Evidence Rule 612 as basis for its decision. (10)

    One must also consider whether the expert (or a lay witness) used sensitive information to refresh her recollection before testifying or while testifying at a deposition or at trial. In Derderian v. Polaroid Co., (11) the court...

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