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July 20, 2015 Articles

Protecting Draft Expert Reports from Discovery

Expert notes and communications not independently protected as attorney work product might not be shielded

by John M. Barkett

In 2010, the Federal Rules of Civil Procedure were amended to shield from discovery draft reports and, with three exceptions, lawyer-expert communications, by characterizing them as attorney work product. Rule 26(b)(4)(B) and (C) provide:

(B)  Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C)  Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(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.

The committee note emphasizes that the work product protection for draft reports applies "regardless of the form of the communication, whether oral, written, electronic, or otherwise." The protection also applies to drafts of any supplements to a report. Courts have treated these changes in mixed ways, however, with some courts not appreciating that a change was made and other courts getting it right.

Lawyer Editing in Preparation of the Expert Report
In Skycam, Inc. v. Bennett, No. 09-CV-294-GKF-FHM, 2011 WL 2551188 (N.D. Okla. June 27, 2011), the defendants argued that two experts' reports were "nothing more than a conduit" through which the plaintiffs' counsel, Kenney, was advocating their theory of the case. Id. at *1. The defendants therefore sought to compel production of the attorney's notes made in connection with interviews of the two experts or the preparation of their expert reports. The district court held a hearing on the motion and at the end of the hearing ordered the plaintiff's counsel to produce these notes in camera. One of the experts, Williams, testified that he and Kenney "met for seven or eight hours and outlined what would be in the report, that Kenney had the report typed up based on notes Kenney took during the meeting, and that Williams then reviewed and made revisions to the report." Id. at *6. The court held that because Williams substantially participated in the report's preparation, 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. 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[, and the] draft report was emailed to Eschborn for his review and signature." Id.

The outcome in Skycam was dictated by the experts' substantial participation in the preparation of the expert report, even though lawyer involvement in drafting was significant. Relying on a case decided before the draft expert report amendment to Rule 26, the magistrate judge in Gerke v. Travelers Casualty Insurance Co., 289 F.R.D. 316 (D. Or. 2013), came to the opposite conclusion. Gerke's lawyer hired an expert, Painter, to give an opinion on whether the plaintiff had intentionally burned his truck as the defendant insurance companies were claiming. During Painter's deposition, a dispute arose, prompting a call to the court which resulted in an order to Painter to produce for in camera review his entire expert witness file. Id. at 319. After reviewing the submission, despite Rule 26(b)(4), the court ruled that Painter had to answer questions in his deposition regarding the source of any text in his report written by others in Painter's office and also by the plaintiff's counsel. Id. at 324. In the deposition, Painter then testified that he wrote the report; that all of the opinions and conclusions were his; and that the 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 the plaintiff's counsel wrote, Painter said he could not do so without comparing the final report to his original draft. Relying on McClellan v. I-Flow Corp., 710 F. Supp. 2d 1092 (D. Or. 2010) (login required), vacated and remanded for new trial on other grounds, 776 F.3d 1035 (9th Cir. 2015),the court concluded: "McClellan teaches that Rule 26(b)'s (login required) 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." Gerke, 289 F.R.D. at 328. The magistrate judge then decided that additional disclosure of communications between the plaintiff's counsel and Painter was warranted and Painter's deposition should be continued to permit further inquiry on the topic by the 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, denying the Commodity Futures Trading Commission's (CFTC's) motion to compel certain communications between the defendants' counsel and two of their experts (Burnside and Parkes). The defendants had produced "some drafts and notes related to defendants' expert reports, including two drafts of Mr. Burnside's report, emails between defense counsel and Mr. Parkes, and 16 pages of Mr. Parkes's handwritten notes." Id. at 349. That prompted the CFTC to question the role of the defendant's counsel in drafting the expert reports. At a meet-and-confer session, the defendants apparently agreed to produce some additional expert emails. The two experts were then deposed. Burnside testified that "he discussed changes to his report" with the defendants' counsel, who then typed the changes. Burnside then accepted the changes. Id. "Mr. Burnside was sure there were additional parts of the report that [the defendants' counsel] wrote and he accepted, but he could not recall which parts specifically." Id. Parkes testified that he and the defendants' counsel had "passed drafts of the report back and forth" and that the defendants' counsel "was involved in the process of developing the opinions, the whole report. Mr. Parkes also admitted that he incorporated portions of analysis from Mr. Burnside and other unknown sources into his report without independently assessing the accuracy of that analysis." Id. at 350 (citation omitted). Relying on Gerke, the CFTC argued that Rule 26(b)(4) provided no protection to the drafts because the 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 first 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. See Gerke, 289 F.R.D. at 329. 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. McClellan, 710 F. Supp. 2d at 1118.

Newell, 301 F.R.D. at 352. Citing the express language of Rule 26(b)(4), the court rejected the CFTC's arguments. Id.

Documents Other Than Draft Reports or Communications Other Than with Counsel
In re Application of the Republic of Ecuador, 280 F.R.D. 506 (N.D. Cal. 2012), aff'd, 742 F.3d 860 (9th Cir. 2014), involved an application for a subpoena under 28 U.S.C. section 1782 directed to an expert for the intervenor, Chevron. (Under 28 U.S.C. § 1782, a district court may order a person over whom there is jurisdiction to give testimony or produce documents or tangible things for use in a proceeding in a foreign or international tribunal). Chevron was involved in a bilateral investment treaty (BIT) arbitration to challenge environmental litigation in a provincial court in Ecuador started by Ecuadoran plaintiffs against Chevron for alleged personal injuries caused by oil exploration in Ecuador. Id. at 509. The expert worked for a consulting firm, Exponent. The Republic was seeking a number of documents from the expert, including drafts of reports he prepared for the litigation, to establish the validity of the Ecuadoran judgment in the BIT arbitration. Pending before the court was a motion to compel production of 2,000 documents withheld by the expert as privileged. The court held that draft reports and draft worksheets prepared by the expert or his assistants for use in his expert reports were protected from disclosure under Rule 26(b)(3)(A) and (B), but draft worksheets prepared by nonattorney Chevron employees had to be produced. Id. at 512. The court ordered that notes, task lists, outlines, memoranda, presentations, and draft letters authored by the expert that were not independently protected as work product had to be produced. Id. at 513–14. The theme throughout the magistrate judge's analysis was that the 2010 amendments to Rule 26 were designed to protect from disclosure only two types of discovery: "an expert's draft reports and the communications between a retained reporting expert and the party's attorney." Id. at 516. Unless a document fell into these categories, it had to be produced.

In affirming, the Ninth Circuit concluded that the 2010 amendments were designed to protect attorney opinion work product. Republic of Ecuador v. Mackay, 742 F.3d 860 (9th Cir. 2014). The court rejected Chevron's arguments that (1) "the text of Rule 26(b)(3), which protects materials prepared 'by or for' a party or its 'representative,' applies to expert materials that do not fall within the attorney-expert communication or draft report protections under Rule 26(b)(4)"; and (2) "there are no applicable exceptions beyond the limited requirements for disclosure (e.g., 'facts or data') and specific exempted categories of attorney-expert communications." Id. at 866.

To the contrary, the Committee sought to balance the competing policy considerations, including the need to provide an adversary with sufficient information to engage in meaningful cross-examination and prepare a rebuttal, on the one hand, and the need to protect the attorney's zone of privacy to efficiently prepare a case for trial without incurring the undue expense of engaging multiple experts, on the other. There is no indication that the Committee intended to expand Rule 26(b)(3)'s protection for trial preparation materials to encompass all materials furnished to or provided by testifying experts, which would unfairly hamper an adverse party's ability to prepare for cross-examination and rebuttal. We accordingly reject Chevron's argument.

Id. at 870–71. In so holding, the Ninth Circuit reached the same conclusion as had been earlier reached by the Tenth Circuit in a second reported circuit court opinion on the Chevron-Ecuador discovery battles. Republic of Ecuador (Carrion) v. For the Issuance of a Subpoena under 28 U.S.C. § 1782(a), 735 F.3d 1179, 1187 (login required) (10th Cir. 2013).

Expert Notes Made in Reviewing Depositions
In a third Chevron-Ecuador court of appeals' opinion, Republic of Ecuador v. Hinchee, 741 F.3d 1185 (11th Cir. 2013), the Eleventh Circuit affirmed an order compelling production, among other documents, of another testifying expert's personal notes. Agreeing with the Tenth Circuit's decision in Carrion, the court held that even after the 2010 amendments, Rule 26(b)(3) did not provide work product protection to an expert's notes and communications with nonattorneys. Hinchee, 741 F.3d at 1191–92.

Wenk v. O'Reilly, No. 2:12-cv-00474, 2014 WL 971939 (S.D. Ohio Mar. 12, 2014), aff'd, 783 F.3d 585 (6th Cir. 2015), reached a similar outcome. The defendants had retained an expert, who reviewed depositions of other witnesses in the matter and made marginal notes on the transcripts of the depositions. The plaintiffs sought these documents. The defendants objected, claiming that they represented draft reports insulated from production, or that the notes did not represent either facts or data that had to be produced. After considering the trilogy of Chevron cases, the court explained that notes made by an expert are not work product, and such notes may contain facts or data that must be disclosed. Wenk, 2014 WL 971939, at *10–11. However, in deference to the argument that the expert was, in fact, making notes of a draft report as opposed to compiling information for possible later use in the matter, the court required the defendants to submit the notes in camera for an evaluation of the argument.

Probing Whether Counsel Provided Facts or Data or Assumptions to the Expert
Sara Lee Corp. v. Kraft Foods, Inc., 273 F.R.D. 416 (N.D. Ill. 2011), was a fight between two competitors in the sale of hot dogs involving mirror-image false advertising claims. The defendants retained an expert, to serve as a testifying expert as to one of the plaintiff's advertisements but as a consulting expert as to another of the plaintiff's advertisements. Id. at 417–18. When deposed, the expert was instructed not to answer any questions regarding his work as a consultant. As part of the motion practice that followed, the defendants submitted in camera their communications with the expert. Those documents showed that he was serving only as a consultant with respect to the advertisements at issue, and the court denied the plaintiff's motion to compel. Id. at 420–21.

In re Asbestos Products Liability Litigation (No. VI), No. MDL 875, 2011 WL 6181334 (E.D. Pa. Dec. 13, 2011), involved "transmittal letters" provided by the plaintiffs' counsel to the principal diagnosing and testifying expert physicians. These letters "may have furnished certain information about exposure, medical and smoking history to the doctors and may have been utilized by them in the formation of any letters or reports provided to counsel to support a claim." Id. at *6. After reviewing Rule 26(b)(4)(C)(ii) and (iii), the court framed the question to be answered as: "whether information provided constitutes 'facts or data' or 'assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.'" Id. The court held that it did and ordered production of any documents in their original format that (1) the plaintiffs' counsel provided to the doctors, or (2) the doctors "considered," including any draft letters, adding that production was required whether the documents were still within the possession of the doctors or the plaintiffs' counsel or "anyone under their control." Id. at *7.

Rule 26(b)(4)(B) and (C) have had a salutary effect on how, in federal court litigation, lawyers interact with experts. But lawyers used to redlining expert reports need to make sure that their experts are well prepared for their deposition. They also have to remember that expert notes or other documents or communications that do not fall into the category of "draft reports" may not be protected if there is not an independent basis for making a work product claim.

Keywords: litigation, commercial, business, Federal Rule of Civil Procedure 26(b), 2010 amendments, expert discovery, draft report, expert notes

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