Hazards of expert witnesses: disclosing work product and limiting testimony.

• Author: Fleming, Robert D.

While the use of experts in litigation has increased markedly in recent years, there are problems that counsel must be careful to consider

THE use of expert witnesses has increased since 1975 when Congress enacted the Federal Rules of Evidence, Rules 702 through 705 of which codify the expert's role in opinion testimony.(1) Expert testimony is not restricted to areas of scientific or technical knowledge. Rule 702 also permits expert testimony relating to "specialized knowledge" if it assists the trier of fact "to understand the evidence or to determine a fact in issue." Experts may come from the traditionally recognized fields of medicine, physics and architecture, and there may be "skilled" witnesses, such as bankers or landowners who testify as to land values.

Rule 702's broad construction has led to the use of expert witnesses in virtually all forms of civil litigation, from antitrust to personal injury.(2) However, the convenience of expert testimony does not come without certain risks to the hiring attorney. These risks include a potential waiver of certain work product protection and limits to the expert's legal opinion testimony.

To what extent are written and oral communications between counsel and a non-party expert witness discoverable under Rule 26 of the Federal Rule of Civil Procedure 26 when the expert witness will testify at trial? To what extent may an expert witness testify on a matter of law under Federal Rules of Evidence 702 and 704?

DISCOVERABILITY OF COMMUNICATIONS

1. Rule 26

   The U.S. Supreme Court codified the common law work product rule of Hickman v. Taylor(3) in Federal Rule of Civil Procedure 26. The work product doctrine protects from discovery the attorney's written materials and mental impressions prepared in anticipation of litigation. Rule 26, as amended in December 1993, requires mandatory disclosures and amplifies the rules governing discovery of expert witnesses. The revised rule accents the competing demands between privileged communications and the fairness of thorough discovery. While the U.S. adversary system demands the ability to protect communications incorporating counsel's theories and mental impressions, liberal discovery rules are designed to promote judicial efficiency and credible testimony.

   Federal district courts compel discovery of facts and materials that a testifying expert has reviewed, and discovery is typically not conditioned on whether counsel or another party provided the materials. Courts have taken inconsistent approaches when applying Rule 26 discovery to communications that incorporate counsel's work product. The growing trend is to permit thorough discovery, including communications that would otherwise be privileged. Alternatively, some courts view the amended Rule 26 as merely a procedural revision. These courts compel discovery but protect counsel's work product by redacting the privileged sections.(4)

   Rule 26(a)(2)(B) requires the disclosure of the "data or other information considered" by expert witnesses in forming their opinions. Rule 26(b)(3), however, protects work product by excluding "mental impressions, conclusions, opinions, or legal theories of an attorney" from discovery. Communications between counsel and experts commonly incorporate the attorney's opinions, traditionally not discoverable, and facts that form the basis of the expert's opinion, always discoverable. Thus, an inherent conflict exists as to which portion of the rule is subordinated to the other.

   Courts have harmonized the discovery and work product rules differently. Facilitating the inconsistency is each district's authorization to modify discovery rules. Rule 26(a)(1) allows district courts to modify the discovery process by local rule or order. So what are approaches to reconciling the inconsistencies as applied to various types of expert documents and communications?

2. Contractual Documents

   Contractual documents recording the hiring of an expert's services by counsel are discoverable if found relevant to the claim's subject matter. Relevancy is more liberally interpreted in the discovery phase and is not restricted to merely admissible evidence.(5) Similar to other documents, contractual communications can be compelled under Rules 26(b)(1) when they are otherwise unavailable to the requesting party without undue burden, and they reasonably lead to admissible evidence.

   In Federal Deposit Insurance Corp. v. Gonzalez-Gorrondona,(6) a federal district court directed the production of an expert's hour and billing information for the previous two years because the court found the information "highly relevant to these proceedings." The court ordered discovery of all billings that the expert made to the FDIC as well as to all other federal and state regulators in connection with his work as an expert.

   In B.C.F. Oil Refining Co. v. Consolidated Edison Co.,(7) another federal district court denied a request for the expert's invoices on the ground that Rule 26 does not require the production of documents that are not related to the expert's report. The court held that invoices are not documents "considered" by the expert and serve little use in cross-examination.

   The contract an attorney uses in hiring an expert is not immune from discovery, however. When the court determines that the contract may contain information pertinent to the subject matter of the case, the court may order production of the contract. Counsel should be cautious by not including any information in the contract that otherwise would be privileged.

3. Materials Generated by Nontestifying Consultant

   Courts will not allow discovery of documents that are prepared by a non-testifying consultant, provided the documents are not reviewed by an expert witness, according to the B.C.F. Refining court, but documents prepared by consultants that are used by a testifying expert are discoverable for cross-examination purposes under Rule 26(b)(1). To be discoverable, the B.C.F. Refining court stated, consulting documents must have some impact on the testifying expert's testimony.

   If the expert functions both as a consultant and an expert witness, the party seeking protection from discovery incurs the risk of disclosure. The court will protect work product prepared by an expert performing consulting services only if there is a clear delineation between the two roles. The B.C.F. Refining court stated that "documents having no relation to the expert's role as an expert [witness] need not be produced but ... any ambiguity as to the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking discovery."(8)

   Merely reclassifying an expert as a consultant may not protect the consultant's work from discovery. When counsel has designated an expert as a expert witness, the court may compel the expert to answer interrogatories despite counsel's later decision not to have the expert testify. Counsel must designate the expert either as a consultant or an expert witness when initially disclosing witnesses.(9)

   The work product doctrine will not protect documents written by consultants and later forwarded by counsel to a testifying expert. When a party requested documents that counsel supplied to his expert witness, a federal district court did not inquire into the nature of the work product incorporated in the document.(10) Rather, it held that whatever protection the documents may have had no longer applied because the documents were reviewed by the expert witness in preparation for his opinion.

   Documents prepared by a non-testifying consultant enjoy protection from discovery provided the documents are requested by counsel in preparation for litigation. However, those same documents are subject to discovery when they are reviewed by a testifying expert, or when they are prepared by an expert who serves as both a consultant and a testifying expert.

4. Materials Generated by Testifying Expert

   Documents authored by a testifying expert are generally discoverable. Some exceptions may apply, however, when counsel participates in the drafting of the documents. Courts find the Civil Rules Advisory Committee's notes to the 1970 amendment to Rule 26 instructive when determining the discoverability of documents authored solely by the expert. One sentence states: "The new provisions of subdivision (b)(4) reject as ill-considered the decisions which have sought to bring expert information within the work product doctrine." In B.C.F. Refining, the court held that expert-generated documents that were authored by the expert were discoverable. The court cited numerous Second Circuit decisions holding work generated by experts, including draft reports and memoranda, discoverable.

   Rule 26 also requires the production of various expert-generated materials other than documents. In Martin v. Intex Recreational Corp.,(11) an expert created a video-tape to demonstrate how a plaintiff might have injured herself on a playhouse manufactured by the defendant, and the federal district court ordered production. The plaintiff argued that the video lacked expert testing or investigatory information, so it should not be discoverable. But the court ordered production on the ground that Rule 26 facilitates thorough cross-examination of expert witnesses by disclosing all materials that formed the basis of the expert's opinion.

   In New Mexico Tech Research Foundation v. Ciba-Geigy Corp.,(12) however, another federal district court refused to compel discovery of documents because counsel assisted in writing them, and the documents recorded the expert's conversations with counsel. The court held that the notes were opinion work product because counsel justifiably expected confidentiality when communicating his notes. The court also noted that the advisory committee's notes refer only to factual information. If the committee had intended to intrude on the attorney opinion work product doctrine, it added, then...