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May 30, 2017 Articles

Work-Product Protection for Draft Expert Reports and Attorney-Expert Communications

A collection of recent cases under Rules 26(a)(4)(B) and (C).

By John M. Barkett – May 30, 2017

On December 2, 2010, the Civil Rules Advisory Committee amended Rules 26(a)(4)(B) and (C) to provide work-product protection to draft expert reports and, with three exceptions, attorney-expert communications. These rules provide thus:

(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 of the draft.

(C) Trial Preparation Protection for Communications Between 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.

Federal Rule of Civil Procedure 26(b)(4)(A) notes that,

[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Furthermore, Rule 26(b)(4)(B) provides that “[i]f the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.”]

The following is a collection of recent cases under Rules 26(a)(4)(B) and (C) .

Windowwizards, Inc. v. Charter Oak Fire Ins. Co., 2015 U.S. Dist. LEXIS 38230 (E.D. Pa. Mar. 26, 2015)
This case involved a dispute over property insurance coverage for snow damage to roof trusses in a building. Plaintiffs were seeking 14 documents sent between Charter’s counsel and its expert (Greve). Following letter briefing, the court required submission of a privilege log and the 14 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.” In addition, there was “no indication that they are part of dialog between defense counsel and him.” Hence, they were not communications between the expert and the party’s attorney protected under Rule 26(b)(4)(C). Based on Wenk v. O’Reilly, No. 2:12-cv-474, 2014 U.S. Dist. LEXIS 36735, 2014 WL 1121920, at *1–7 (S.D. Ohio Mar. 20, 2014) (login required), the court added that notes are 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.

Deangelis v. Corzine,2016 U.S. Dist. LEXIS 1856 (S.D.N.Y. Jan. 7, 2016)
In this case, the magistrate judge denied a motion to compel a chart and summary prepared by a nontestifying expert and provided to a testifying expert that were included in a draft expert report and thus were protected from disclosure as work product.

Fortunately, there is strong evidence in this case that the documents at issue were in fact created for use in Mr. Markham’s expert report. First, Mr. Markham clearly implies in his deposition testimony that he requested the write-up and the chart so that he could include them in the report he was drafting. . . . In each case, it seems clear that, when he requested the documents, Mr. Markham anticipated that those documents would form a part of the report he was drafting. My in camera review of the documents at issue confirms that Mr. Markham did in fact insert the write-up and the chart into his draft report, providing persuasive evidence that these documents were created as preliminary versions of portions of Mr. Markham’s expert report.

 Id. at *33–34. The court concluded that “the evidence presented is sufficient to establish that the documents the CFTC requested are shielded from disclosure by Rule 26(b)(4)(B).” Id. at *35.

Davita Healthcare Partners, Inc. v. United States, 128 Fed. Cl. 584 (Fed. Cl. Sept. 29, 2016)
The court of claims in this case held that an expert’s spreadsheets, graphs, and analyses supporting a plaintiff’s damages claim are not “facts and data” within the exception to Rule 26(b)(4)(C).

Defendant mistakenly equates the expert’s spreadsheets, graphs, and analyses in her presentations to counsel with “facts and data.” These formulations, however, are interpretations of data that reflect counsel’s mental impressions and result from the expert’s and counsel’s collaborative efforts to organize, marshal, and present data. This selective presentation of data is separate and distinct from the underlying facts and data themselves. . . . Indeed, because Ms. Ryan included an extensive list of facts and data she considered in formulating her report in her description of “Key Data Sources,” Defendant has obtained a full factual predicate for this expert’s opinions and has what it needs to probe and test those opinions.

Id. at 591. The court of claims also held that these spreadsheets, graphs, presentations, and charts are included within the draft-report protection of Rule 26(b)(4)(B): “Spreadsheets, graphs, presentations, and charts are protected under Rule 26(b)(4)(B), so long as the documents were prepared by the testifying expert to be included in draft expert reports.” Id. at 591.

United States ex. rel. Wall v. Vista Hospice Care, 2016 U.S. Dist. LEXIS 99480 (N.D. Tex. Mar. 22, 2016)
Wall involved the question of the presence of “facts or data” in a draft expert report. The district court held that facts or data provided by an attorney in the form of edits to a draft expert report would not be protected from disclosure.

Based on the text of Rule 26(b)(4) as well as its structure and context, and looking to the Advisory Committee’s notes for guidance and support, the Court concludes that, notwithstanding Rule 26(b)(4)(B), Rule 26(b)(4)(C) and its exceptions apply to any communications between the party’s attorney and the expert witness in the form of a draft expert report to the extent that portions of the draft transmitted between the attorney and the expert either identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed or identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed. If other portions of a draft report (as transmitted between the attorney and the expert) do not identify any such facts or data or assumptions, both Rules 26(b)(4)(B) and 26(b)(4)(C) would collectively protect those portions of the draft report as work product under Rule 26(b)(3).

Id. at *29. The district court also held that even if an attorney, instead of an expert, wrote the first draft of an expert report, it would be protected under Rule 26(b)(4)(B).

Finally, the district court ordered production of any portions of a draft rebuttal expert report “that counsel wrote or prepared in the first instance and that identify facts or data that VistaCare’s attorney provided and that the experts considered or identify assumptions that VistaCare’s attorney provided and that the expert relied on.” Id. at *39. The court noted that

[n]otwithstanding VistaCare’s assertion that Relator failed her evidentiary burden, the Court concludes that Relator was not required to provide evidence that any portions of the Draft Rebuttal Report actually identifies otherwise-undisclosed facts that VistaCare’s attorney provided and the experts considered or identifies any assumptions that VistaCare’s attorney provided and the experts relied on. If portions of the Draft Rebuttal Report do, those portions are discoverable under Rule 26(b)(4), and Relator can obtain that discovery on this Motion to Compel regardless of what she did or did not ask Dr. Bull and Hughes at their depositions.

Id. at *38–39.

Inman v. GE, 2015 U.S. Dist. LEXIS 116135 (W.D. Pa. Aug. 27, 2015)
The district court in Inman rejected an argument that a report was not a draft.

Here, the entirety of the information submitted on the subject supports a finding that the disputed documents are ‘draft reports.’ Contrary to plaintiff's assertion, the reports are unsigned. Furthermore, Mr. Sibley testified that they were draft reports. And counsel immediately objected to their inadvertent disclosure. Against this backdrop, the fact that the documents were not imbued with the word “draft” does not supply credible indicia that the documents were intended to be or somehow became a completed report. Consequently, the reports in question fall within the revised work-product protection afforded by Rule 26(b)(4)(B).

Moreover, the drafts reflect differing approaches to countering the matters brought into focus by plaintiff's testimony and/or plaintiff's expert report. The changes raise a sound inference that they were brought about by discussions with counsel. Such “protected work prepared in anticipation of litigation must be produced only under very limited circumstances.” Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 277 (W.D. Pa. 2014) (login required) (Cercone, J.). . . .

Here, plaintiff has not even attempted to meet the stringent showing needed to compel material subject to the work-product protection. In addition, disclosure of the differing approaches would be tantamount to compelling disclosure of counsel’s strategies and theories about the best measures to pursue in defense. Such “opinion work product is ‘afforded near absolute protection from discovery.’” Id. (quoting In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003)) (login required). There is no basis in the record for disclosure of such information.

In short, the documents in question are draft expert reports entitled to protection under the work-product privilege. Plaintiff has failed to supply any basis for overcoming that privilege. Consequently, his motion to compel properly has been denied.

Id. at *5–7.

Pennenvironment & Sierra Club v. PPG Indus., 2014 U.S. Dist. LEXIS 193473 (W.D. Pa. Oct. 7, 2014)
This is a special master’s report resulting in a recommendation that a number of documents claimed to be protected as work product be produced because they were expert-to-expert communications or notes made by the expert as part of the expert’s deliberative process. The special master’s report contains the following jurisprudential framework for the decisions made:

[N]otes or outlines prepared by the experts (as these materials are reflective of the expert’s deliberative process and not the work product of counsel) and communications between and among the experts and the experts’ staff (not referencing or inferring the theories or mental impressions of counsel) will not be protected. . . .

There is widespread consensus that notes of experts or communications between experts, expert staff or other non-attorneys will not be protected from discovery “as draft reports.”. . .

Wenk v. O’Reilly . . . (login required) was particularly relevant to the principles employed relative to this in camera review. Wenk establishes that the protection against disclosure in the context of draft reports and communications with counsel is designed not to shield the expert’s reasoning process from discovery, but to guard against the dissemination of attorney work product and facilitate the communication process between attorney and expert. Therefore, notes taken by an expert, which did not result from or reflect any attorney-driven communications, will not implicate the work product doctrine and, the fact that such notes may be subject to discovery, does not appear to impact the attorney’s ability to communicate effectively with the expert as the drafting process gets underway in earnest.

Id. at *5–9.

What are the takeaways here? You need to know your jurisdiction. You must be familiar with the case law and the nuances in the case law. You still have to exercise care in what you say to an expert, how you say it, and what you provide to the expert. And your expert must be well-prepared to respond to questions that will be asked at a deposition or that might otherwise arise.

John M. Barkett is a partner at Shook, Hardy & Bacon in Miami, Florida.

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