Remaining Risks of Open Communications with Experts in Federal Court

Exceptions to Narrowed Expert Discovery and Remaining Risks
While the new rules substantially diminish the scope of expert discovery, there are notable exceptions, and risks of discovery remain, especially in federal cases based on diversity.

The Enumerated Exceptions 
The new Rule 26 regarding discovery of communications with testifying experts provides protection of communications between attorney and expert with three enumerated exceptions, i.e., communications that:

Fed. R. Civ. P. 26(b)(4)(C). These are relatively benign exceptions that reflect little change from the earlier rules. Rule 26(a)(2)(B)(ii) was modified to limit the expert reports to facts or data (rather than “data or other information”) “considered” by the witness. The focus on “facts or data” rather than “data or other information” is supposed to exclude “theories or mental impressions of counsel,” while at the same time requiring disclosure of any “material considered by the expert, from whatever source, that contains factual ingredients.” In addition, the scope of disclosure is broadened to include all facts or data “considered” by the expert rather than the previous rule requiring disclosure of information “relied” on by the expert.

The Substantial Need/Undue Hardship Exception 
Outside the three exceptions enumerated in Rule 26(b)(4)(C), the rules allow for discovery of attorney-expert communications only by showing that the party has a “substantial need” and cannot obtain the “substantial equivalent” without “undue hardship.”

With respect to fact work product, it is well settled among most courts that such work product is discoverable based on a showing of undue hardship and substantial need. See, e.g., In re Asbestos Prods. Liab. Litig., 2011 U.S. Dist. LEXIS 143009 (E.D. Pa. Dec. 13, 2011) (allowing discovery of letters between expert doctors and attorneys where information transmitted was factual). However, there is a division among courts as to what burden is required to overcome opinion work-product protection. Some courts find that opinion work product is absolutely protected. See, e.g., In re Green Grand Jury Proceedings, 492 F.3d 976, 980 (8th Cir. Minn. 2007) (opinion work product enjoys “nearly absolute immunity,” and is discoverable only under “rare and extraordinary” circumstances). Other courts find that where mental impressions, opinions, and legal theories are directly at issue in a case, the material is discoverable. This issue has arisen in bad-faith claims asserted in insurance litigation. APL Corp. v. Aetna Casualty & Surety Co., 91 F.R.D. 10, 14 (D.C. Md. 1980) (finding that work product in a claim file was discoverable because what the insurer knew at the time of the denial was a central issue in the case); Reavis v. Metropolitan Prop and Liab. Ins. Co., 117 F.R.D. 160, 164 (S.D. Cal. 1987) (work product of insurer's agents in claims files relating to allegations in complaint were directly at issue and discoverable); Walters v. State Farm Mut. Auto. Ins. Co., 141 F.R.D. 307, 309 (D.Mont. 1990) (same).

With respect to opinion work product considered by an expert, prior to the 2010 amendments, there was a division of authority as to whether such opinion work product was discoverable. See Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d 278 (4th Cir. 2007) (majority rule allowing discovery of all documents relied on by an expert, even attorney work product);Reg'l Airport Auth. v. LFG, LLC, 460 F.3d 697, 715 (6th Cir. Ky. 2006) (same); In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001) (same); cf Teleglobe USA, Inc. v. BCE Inc. (In re Teleglobe Communs. Corp.), 392 B.R. 561, 575 (Bankr. D. Del. 2008) (citing various minority rulings of Third Circuit and district court cases holding that work product, even if relied on by expert, is not discoverable).

The 2010 Advisory Committee Notes resolve the diverging authority, siding with the minority view that attorney work product is not discoverable. The Advisory Committee Notes state explicitly that the showing of substantial need and undue hardship will be “rare,” and thatregardless of this showing, the court “must protect against disclosure of the attorney’s mental impressions, conclusions, opinions, or legal theories under Rule 26(b)(3)(B).” (emphasis added).

The Advisory Committee Notes dilute the protection afforded to expert discovery, stating that “this protection does not extend to the expert’s own development of the opinions to be presented; those are subject to probing in deposition or at trial.” (emphasis added). This comment addresses the situation where the expert rendered an opinion earlier in his or her evaluation of the matter that varied from the opinion that was finally disclosed. It appears, then, that the new rules attempt to strike a balance in allowing cross examination of an expert whose opinion has changed over time, but not allowing discovery of documents reflecting those changed opinions. Importantly, if the expert’s opinion changed due to an assumption provided by counsel, the assumption relied on is discoverable. Fed. R. Civ. P. 26(b)(4)(C)(iii).

Beware of Remand and Possible Application of State Rules
In cases where federal jurisdiction is based solely on diversity, counsel should not rely on the protections afforded by the new federal rule. If a non-diverse defendant is named or if it is stipulated that the amount in controversy is less than the jurisdictional amount, and the case is remanded to state court, expert discovery may proceed according to state-court rules of civil procedure, which could allow discovery of draft reports and counsel’s communications with experts.

Timing of the Filing Affects Applicability of the New Rule
Finally, the U.S. Supreme Court order adopting the December 2010 Federal Rules states that the amended rules "shall take effect on December 1, 2010, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending." While there is very little case law on the applicability of the December 2010 Federal Rule amendments to cases pending prior to December 2010, the District Court for the District of Columbia recently decided that the pre-December 2010 rules applied because the parties had exchanged expert disclosures prior to December 2010. American Property Constr. Co. v. Sprenger Lang Found., 2011 U.S. Dist. LEXIS 25856 (D.D.C. Mar. 14, 2011). Other courts find that the December 2010 rule change applies to cases that have been pending since 2007, even if expert reports were already exchanged prior to the rule change.See, e.g., Lightfoot v. Hartford Fire Ins. Co., et al. Docket No.: 07cv4783 (E.D. La. 2011) (Zainey, J., unreported).

Conclusion
The new federal rules significantly narrow the scope of expert discovery, but not without some notable exceptions. While the new rules make communications with experts less cumbersome, the practitioner is cautioned that fact work product, assumptions provided to experts, and the expert’s development of his or her opinions continue to be discoverable, at least under certain conditions. In addition, the practitioner should keep in mind that remand of the case may result in application of state procedural rules and that the old rule may apply in federal court if litigation was not commenced until after December 2010.

Keywords: environmental litigation, fact work product, opinion work product, discovery, Rule 26

_{Deborah A. Vennos is counsel with Robinson & Cole LLP in Hartford, Connecticut.}

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