Document Requests: Discoverability of Testifying Expert Witness Opinion - ABA YLD 101 Practice Series

By Delia Corinne Elder

Although many young lawyers have drafted and responded to requests for production of documents, they may not have worked with an expert to prepare a Rule 26(b) opinion report. You should be aware of the rules governing discoverability of communications with or materials shared among attorneys, clients, and experts.

Courts treat expert witnesses differently based on their roles: an expert witness can be considered a testifying expert, a non-testifying expert who was "retained" and/or consulted, or a non-testifying expert who was merely consulted. This article will focus solely on the first category: experts consulted and retained who may testify at trial.

Why is it important to be wary of expert materials that may be discoverable? Consider the following discussion during the deposition of an expert witness:

  • Attorney A: "Did you review your file in anticipation of testifying today?"
  • Expert: "Well, I looked at an e-mail Attorney B prepared concerning the issues related to the case that may arise during the course of the deposition. . ."
  • Attorney A: "May I see that transmission?"
  • Attorney B: "Objection -- attorney work product, and request that he not produce it."
  • Attorney A: "If it's in his file, I think I'm entitled to see it, especially if that's the sole thing that he reviewed in preparation for his testimony today."
  • Attorney B: "It's a communication by me with this retained expert, and contains my mental impressions, so that is work product."
  • Attorney A: "So are you instructing him not to produce the document?"

If this issue is brought before the court on a motion to compel, there is a chance that the judge may order the e-mail to be produced, along with any and all other communications, of any kind, with their respective experts. Despite a split of authority as to whether Rule 26(b) requires disclosure of materials in an expert's file that may also contain attorney work product, the majority view favors disclosure.

The Federal Rules of Civil Procedure authorize discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . ." F.R.C.P. 26(a)(1). This rule mandates that everything is generally discoverable, unless it is privileged. But the defense of privilege only extends so far. Rule 26(a)(2), the rule governing disclosures regarding experts, often trumps any claim of privilege.

Rule 26(a)(2)(B) requires parties to disclose the opinions of testifying experts. The rule further requires that the expert produce a report, and that the report disclose the underlying bases for the opinion and "the data or other information considered by the witness in forming the opinions," among other things. The comments to the rule indicate that "other information" considered by the expert includes any documents used in the preparation of the final report and the opinions contained therein. Thus, any documents relied upon (or merely considered) by your expert are fair game for requests for production or interrogatories. Discovery requests may target the following areas:

  • Communications and documents transmitted by you or your client to the expert;
  • Communications and documents transmitted to you or your client (or its employees) by the expert; and
  • Your expert's drafts, notes, memoranda, reports, letters, and e-mails.

Although comprehensive, the rules are not meant to preclude you from ensuring that the expert is well-prepared for trial. To protect your communications with the expert, keep the following guidelines in mind:

Counsel: Communicating with your Expert
Do everything over the phone. Do not use electronic mail or hard-copy correspondence to discuss anything with your expert other than setting up a face-to-face meeting or a telephone conference. Remember, anything that you transmit to the expert is discoverable; before pressing "send" or writing a letter, always ask yourself whether this is something you would prefer not to produce to the other side.

Even if you believe your communication is privileged, in that it includes only attorney work-product such as your thoughts, "mental impressions," or other privileged communications, most courts hold that the benefit to be gained by compelling the production of communication with experts prevails over preventing such disclosures. Furthermore, courts lean towards discoverability because they do not want to be tasked with evaluating each and every transmission among attorney, client, and expert.

The Expert's File: Documents that you or your client produce to the expert
The expert's file includes anything you produce to the expert that the expert may review in the formulation of his or her opinion. Keep in mind that the advisory committee notes on Rule 26(a)(2) indicate that any materials furnished to experts "to be used in forming their opinions -- whether or not ultimately relied upon by the expert" -- are discoverable. Even if your expert does not rely on something produced to him or her to generate an opinion, that material generally must be produced under Rule 26(a)(2).

Although some courts allow the expert to show other facts on which the expert relied to show that he or she did not rely on the transmission at issue (and some courts place an even higher burden on the movant, requiring a substantial hardship in discovering this information by other means), the bright-line stance in favor of production has been adopted by most jurisdictions. Therefore, minimize the amount of the printed material transmitted to your expert -- particularly materials generated to assist the expert.

Discoverable documents in an expert's file that often become the subject of motions to compel include:

  • Timelines, summaries, and outlines prepared by your office or client to help the expert understand the issues in the case;
  • Letters from your client (or its employees) to you, the attorney, requesting legal advice;
  • Client notes of telephone conversations between you and the client;
  • Requests for proposals sent to various experts requesting their services;
  • The resulting contract for services;
  • Invoices or bills from the expert itemizing services;
  • Letters or e-mails from you to the expert discussing factual and/or legal issues in the case;
  • Medical histories prepared by you or your client for the purpose of expert review prior to the expert interviewing the opposing party; and
  • Cover letters/e-mails from your office identifying enclosed or attached documents.

Along the same lines, your expert may generate written or printed materials concerning the case. Although it might seem obvious, you should advise the expert (verbally) that any notes or memoranda discussing the case must be produced to the other side. For example, calendar entries regarding the case or notes of telephone calls with counsel are discoverable. The expert should avoid generating such materials to the extent possible with the understanding that they will need to be produced to the other side.

The Rule 26(b) Report (and Drafts Thereof)
Advise the expert (verbally) that any drafts of the report must be produced to the other side. Your expert should never transmit a draft of the report to you, via electronic mail or hard copy. Your expert should avoid printing out hard copies of the report and keeping them in the expert file. Conversely, you should never transmit a copy of the report to the expert in anything other than final form.

To review your expert's report, have the expert call you and read the report to you line by line. Discuss any changes as you go through the report. Although drafts of reports are discoverable under the rules and case law governing electronic discovery, this practice avoids generating a printed draft of the report and avoids transmission of any draft versions of the report between you and the expert via e-mail or hard copy.

Some courts distinguish between correspondence that occurs after the final report is produced (as opposed to correspondence produced before), holding that such correspondence may not be discoverable so long as the contents were not relied upon by the expert in forming his opinion, and it does not pertain to opinions that the expert will render at trial. To be safe, you should, again, strive to eliminate written communications to and from your expert.

The discoverability of expert opinions presents many traps for the unwary. However, by being keenly aware that courts lean towards disclosure of materials considered by experts, you can prevent the inadvertent transmission of information that may aid the other side and harm the credibility of your expert.

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About the Author

Ms. Elder is an associate with Thompson, O'Brien, Kemp & Nasuti, P.C. in Norcross, Georgia. She practices in the areas of real estate, litigation, and commercial transactions. Ms. Elder is an active member of the American Bar Association, the Atlanta Bar Association, and the Young Lawyers Division of the State Bar of Georgia.

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