October 01, 2015

Draft Expert Reports and Work Product

John M. Barkett

Environmental litigation almost always involves expert testimony and the preparation of expert reports. Any lawyer who has retained an expert witness in litigation has gone through the exercise of avoiding creation of drafts of the expert’s report to avoid later discovery fights, unless, of course, there is an agreement among counsel that no one will seek draft reports.

Rule 26(b)(4)(B) and (C) of the Federal Rules of Civil Procedure were amended in 2010 to provide work-product protection to draft reports and lawyer-expert communications except as to communications that “(i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed, or (iii) identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.”

A series of decisions have illuminated the work-product protection for draft expert reports, lawyer-expert communications, and notes or other materials prepared by experts in the course of an engagement. Lawyers can take comfort in the protections offered by the rule, but they must still not become complacent. They must have a conversation with their expert laying out the context for generating notes or other written materials. And they must be certain that the expert is properly prepared for deposition testimony.

Four decisions will illustrate these points.

In Skycam, Inc. v. Bennett, 2011 WL 2551188 (N.D. Okla. June 27, 2011), defendants argued in pertinent part that the reports of two experts (Williams and Eschborn) were “nothing more than a conduit” through which plaintiffs’ counsel, Kenney, was advocating their theory of the case. Id. at *1. Because of deposition testimony by the experts about plaintiff’s counsel’s drafting of the reports following lengthy discussions with the experts, the district court decided to review the notes made by counsel of the meetings with the experts to verify that the experts had substantially participated in the preparation of the reports. The court held that because Williams substantially participated in preparation of the report, the motion to compel would be denied: “The court has reviewed notes Kenney took during the meeting with Williams, notes of an earlier meeting between the two, and the draft report. The court concludes from its review that Williams substantially participated in preparation of the report.” Id. at *6. The court reached the same conclusion for the other expert, Eschborn, who testified that “he met with Kenney for seven hours, that he ‘dictated the concept’ of his opinions and Kenney wrote the opinions on a note pad and then wrote the report based on Eschborn’s opinions. The draft report was emailed to Eschborn for his review and signature.” Id.

Gerke v. Travelers Casualty Insurance Co., 289 F.R.D. 316 (D. Or. Feb. 19, 2013), came to the opposite conclusion. Once again, the issue of the lawyer’s involvement in drafting the expert report arose because of testimony given by the expert in a deposition. After motion practice and a submission of the expert’s file in camera, the court ruled that the expert, Painter, had to answer questions in his deposition regarding the source of any text in his report written by others in Painter’s office but also by plaintiff’s counsel. In the deposition, Painter then testified that he wrote the report and that all of the opinions and conclusions were his and that plaintiff’s counsel had helped him “clean it up, edit it, make it more professional, if you will.” Id. at 325. When asked to identify the portions of the report by paragraph that plaintiff’s counsel wrote, Painter said he could not do so without comparing the final report to his original draft. Relying on a case decided before the 2010 amendments to Rule 26(b)4)(B) and (C), McClellan v. I–Flow Corp., et. al., 710 F. Supp. 2d 1092 (D. Or. 2010), the court concluded: “McClellan teaches that Rule 26(b)‘s attorney work-product protection has limits. Communications between a lawyer and the lawyer’s testifying expert are subject to discovery when the record reveals the lawyer may have commandeered the expert’s function or used the expert as a conduit for his or her own theories.” Id. at 328. The magistrate judge then decided that additional disclosure of communications between plaintiff’s counsel and Painter was warranted and Painter’s deposition should be continued to permit further inquiry on the topic by defendants’ counsel.

The court in United States Commodity Futures Trading Commission v. Newell, 301 F.R.D. 348 (N.D. Ill. 2014) rejected the analysis in Gerke. Here the issue of the lawyer’s role in drafting the expert report surfaced because defendants had produced some drafts and notes related to the expert reports of two experts (Burnside and Parkes). After a meet-and-confer session on the topic and production of some additional emails, Burnside and Parkes were deposed. Burnside testified that “he discussed changes to his report” with defendant’s counsel who then typed the changes. Id. at 349. Burnside then accepted the changes. Parkes testified that he and defendant’s counsel had “passed drafts of the report back and forth” and that defendant’s counsel “‘was involved in the process of developing the opinions, the whole report.’” Id. at 350. Relying on Gerke, the U.S. Commodity Futures Trading Commission (CFTC) argued that Rule 26(b)(4) provided no protection to the drafts because defendants’ counsel “likely drafted” portions of the reports. It added that Rule 26((b)(4)(C) permits discovery of facts, data, or assumptions supplied by counsel. The court held that Gerke’s reliance on McClellan was suspect:

The McClellan decision, however, like the other decisions cited in Gerke, predates the amendment adding Rule 26(b)(4)(B) and (C), which was effective December 1, 2010. Furthermore, the McClellan decision was not about discovery or work-product protection. The court there considered a Daubert challenge to certain experts’ reports, taking into account pre-amendment case law regarding lawyers’ assistance in drafting expert reports.”

Id. at 352 (citations omitted). Then citing the express language of Rule 26(b)(4), the court rejected the CFTC’s arguments.

Windowwizards, Inc. v. Charter Oak Fire Insurance Co., 2015 U.S. Dist. LEXIS 38230 (E.D. Pa. Mar. 26, 2015) involved a dispute over property insurance coverage for snow damage to roof trusses in a building. Plaintiffs were seeking fourteen documents sent between Charter’s counsel and its expert (Greve). Following letter briefing, the court required submission of a privilege log and the fourteen documents for in camera review. The court concluded that documents 1, 2, and 3 identified only “facts and data” provided by defense counsel to Greve and, thus, had to be produced. Documents 4, 7, 9, 10, 11, 13, and 14 were emails or letters between defense counsel and Greve that were protected under Rule 26(b)(4)(C) because they did not fall into any of the exceptions of this rule. Document 12 was a letter to Greve from defense counsel containing three paragraphs. The court held that paragraphs one and three did not fall into any of the exceptions under Rule 26(b)(4)(C), but the second paragraph identified “facts or data” being provided to the expert by defense counsel. Hence, it ordered this letter produced in redacted form. Finally, documents 5, 6, and 8 were plaintiffs’ expert reports that contained notations by defendant’s expert. The court held that these notes “appear to be for Mr. Greve’s benefit.” Id. at *5. In addition, there was “no indication that they are part of dialog between defense counsel and him.” Id. Hence, they were not communications between the expert and the party’s attorney protected under Rule 26(b)(4)(C). Based on Wenk, supra, the court added that notes were not “draft reports” protected under Rule 26(b)(4)(B). Because the notes made by an expert were not independently protected as work product, the court held that they must be produced.

What are the takeaways here? Get an agreement with counsel on lawyer-expert communications, including draft reports and notes, to avoid this case law altogether. Failing that, know the rules. Know your jurisdiction. Form matters: have a discussion with your expert about note taking or the preparation of other written materials in the context of lawyer-expert communications. And, most importantly, make sure your expert is prepared properly for deposition questions on the sources of statements contained in an expert report and the context for development of notes or other written materials.

John M. Barkett

Mr. Barkett is a partner in the Miami office of Shook, Hardy & Bacon, and a member of the editorial board of Natural Resources & Environment.