November 03, 2011 Articles

Increased Protection for Communications with Experts under Amended Rule 26

By Christopher R. Christensen and Robert Alaimon

For nearly a century, expert testimony has been an integral part of civil litigation in cases involving engineering, medical, scientific, or other technical subjects beyond the comprehension of the average person. What started out as a supplement to fact-finding during trial has grown into a complex, costly, and important aspect of pretrial discovery.

For nearly a century, expert testimony has been an integral part of civil litigation in cases involving engineering, medical, scientific, or other technical subjects beyond the comprehension of the average person. What started out as a supplement to fact-finding during trial has grown into a complex, costly, and important aspect of pretrial discovery.

As the use of experts has expanded, so have the demands of adversaries for access to the experts’ work product and scientific rationale, forcing courts to balance two opposing forces. On one side, the retaining party argues that communications between counsel and its expert should not be discoverable. For that party, permitting full access to these communications unfairly increases the cost of litigation, affects client confidentiality, and unjustly educates its adversary. In contrast, the opposing party contends that complete discovery is necessary to prepare for cross-examination and to obtain facts, theories, and opinions that would otherwise be inaccessible. Recently, the battleground over expert discovery scope was once again redefined under the federal rules.

In December 2010, changes to expert disclosure rules went into effect. The amendments protect most attorney-expert communications as privileged. Attorneys now have a much freer hand in communicating with an expert; however, traps still exist that could lead to inadvertent and damaging disclosures. This article traces the evolution of the rules governing expert disclosures and discusses the first decisions interpreting the most recent federal rule amendments.

The 1970 and 1993 Amendments
The federal rules first dealt directly with expert testimony with the 1970 amendments to Rule 26. Fed. R. Civ. P. 26 advisory committee’s notes on 1970 amendments. However, it was not until later amendments that Rule 26 began to have a significant impact on litigation.

The rise and success of “professional” litigation experts and the concern that counsel were exerting undue influence over the opinions of experts led to calls for greater transparency in the use of experts. These culminated in the 1993 amendments to Rule 26 on expert discovery. In this iteration, a party employing an expert had to provide a report to his or her adversary during pretrial discovery with “a complete statement of all opinions” that also contained “the data or other information considered by the [expert] witness in forming the opinions.” Fed. R. Civ. P. 26(a)(2)(B) (1993). The key change in the 1993 amendments was the replacement of the term “relied upon” with the term “considered by.” This greatly expanded the scope of what was discoverable from the expert because the expert was required to disclose every piece of data reviewed in forming his or her opinion. See Karn v. Ingersoll Rand, 168 F.R.D. 633, 639 (N.D. Ind. 1996); see also Synthes Spine Co. v. Walden, 232 F.R.D. 460, 463 (E.D. Pa. 2005).

According to the advisory committee’s notes on the 1993 amendments, the amendments effectively eliminated privilege claims for materials furnished to an expert by counsel and considered by the expert. Most courts interpreted the 1993 amendments to require counsel to disclose all documents provided to the expert, all draft expert reports, all notes taken by the expert, and, in some cases, even the recorded mental impressions and opinions of the attorney. See Hewlett-Packard v. Bausch & Lomb, 116 F.R.D. 533, 537 (N.D. Cal. 1997); Mfg. Admin. & Mgmt. Sys. v. ICT Grp., Inc., 212 F.R.D. 110, 114–15 (E.D.N.Y. 2002). The 1993 amendments represented a sea change in the manner in which expert discovery was conducted in federal courts.

The expansiveness of disclosure led to perverse results in the way that attorneys would deal with their experts. Attorneys avoided written communications and refused to discuss issues with their experts to the greatest extent possible. They also instructed experts to keep written notes to a minimum and avoid preparing and circulating draft reports. In some cases, attorneys would retain a parallel set of “non-testifying” experts, not subject to the disclosure requirements, as part of the process of preparing the reports of their testifying experts. These restrictions and the way they forced practitioners to respond substantially increased the cost of preparing experts for trial.

The 2010 Amendments
The 2010 amendments, however, shift the tone of the federal rules in favor of protecting the communications between attorneys and their experts. Under the amended Rule 26, communications between an attorney and an expert are presumed privileged and are protected work product unless they fall under three broad exceptions. The new rule also contains specific provisions protecting from disclosure any draft or preliminary reports and any work from a consulting expert retained in anticipation of trial, but not as a testifying witness. Fed. R. Civ. P. 26(b)(4)(B) and (D).

Despite the overall shift to narrow the scope of expert discovery, three broad exceptions still provide an adversary with an opportunity to obtain information to be used for cross-examination of the expert. Materials not protected by a presumption of privilege include those 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 on in forming the opinions to be expressed.” Fed. R. Civ. P. 26(b)(4)(C)(i)–(iii) (2010). These exceptions, particularly (ii) and (iii), encompass a large portion of what an adversary would normally seek in litigation. The application and interpretation of these provisions will have the most profound effect on the level of protection afforded by the federal rules.

The construction of these exceptions is a subtle but significant shift from the previous version of Rule 26. The 2010 amendments bifurcate discoverable information into two main categories: “facts or data” and “assumptions.” For “facts or data,” the new version of Rule 26 retains the use of the term “considered.” However, for “assumptions” the federal rules revert to the more restrictive term “relied on.” See Synthes Spine Co., 232 F.R.D. at 462 (noting the difference between “relied upon” and “considered” under the 1993 amendment). The Advisory Committee, by setting this difference, sought to maintain broad disclosure of all the “factual ingredients” of an expert opinion or report but to protect discussions between the attorney and the expert “about the potential relevance” of facts or data. This distinction is consistent with the tone of the new version, the goal of which is to protect preliminary or draft materials and any material that may constitute work product.

The separation of assumptions from facts or data, combined with other provisions protecting draft reports, dramatically shifts Rule 26 toward the protection of expert information and away from complete disclosure (and transparency). It is yet to be seen how the new rules will be applied in district courts throughout the nation.

Application of the 2010 Amendments
The first decisions interpreting the amended rules suggest that practitioners should carefully consider the potential impact the amended rules have on litigation and not assume that the amendments have ended the expert discovery battle.

At least one court has shown a willingness to limit disclosures, while acknowledging that the rules establish a presumption of work-product protection. In Sara Lee Co. v. Kraft Foods Inc., 273 F.R.D. 416 (N.D. Ill. 2011), defense counsel retained an expert to provide assistance in interpreting two advertisements in a false and deceptive advertising case. For one advertisement, the counsel retained the expert to provide testimony. For the other, counsel retained the same expert as a “non-testifying consultant,” in which capacity the expert provided suggestions on how to take a customer survey.

Focusing solely on the advertisement for which the expert was a non-testifying consultant, the court found that any information relating to this advertisement was protected for two reasons. First, the expert was a non-testifying consultant and thus the information was expressly privileged under Rule 26(b)(4)(D). Notably, the three exceptions to privilege do not apply to information provided to a non-testifying expert. Second, even if the information did relate to his role as a testifying expert, the information sought was neither “facts or data” nor an “assumption” in that he only suggested a methodology. The amended rule thus provides two avenues of protection for an expert’s information: his or her status as a witness and the substance of the information sought.

This case establishes two important points. First, the discoverability of information from an expert is not an all-or-nothing standard. The new rule recognizes that experts have complex and differing roles in litigation; thus, a court cannot apply a uniform standard across all subject areas. Second, an attorney potentially can shield information provided to or garnered from an expert by designating him or her as non-testifying for a particular subject area. Such a designation permits an attorney to communicate more freely with an expert without fear of inadvertently defeating privilege and allowing a court to order discovery. These tools vastly increase the control a party has over the expert.

Testifying Versus Non-Testifying Expert Reports
The protection of designating an expert as non-testifying can be valuable in situations where multiple experts are retained. It is important to note that the protection for a non-testifying expert is not lost when a non-testifying expert works with a testifying expert. It is often the case that an attorney will employ multiple experts, but as part of the litigation strategy the attorney will designate only one expert (or a subset of experts) as testifying witnesses. The ability to designate roles for experts gives counsel more control over his or her own trial strategy and more control over the costs associated with expert depositions and disclosures.

With the 2010 amendments, the rule makers sought to encourage this cost-cutting tactic by protecting communications not only between an attorney and an expert but also between consulting experts. Nat’l W. Life Ins. Co. v. W. Nat’l Life Ins. Co., No. A-09-CA-711 LY, 2011 WL 840976 (W.D. Tex. Mar. 3, 2011). The protection of Rule 26 is not lost when non-testifying experts provide assistance in preparing an expert report with a testifying expert. A party need not automatically disclose the expert’s participation or communications. Therefore, communications between experts such as emails and drafts of reports retain a degree of protection. However, the existing case law has dealt with disclosures outside the context of a deposition. It is still an open question as to the extent an adversary can question a testifying expert at a deposition about the outside assistance.

Timing for Hiring an Expert
Often a litigant will employ an expert in anticipation of litigation. Under the 2010 amendments, expert communications are entitled to the Rule 26 protections if the expert was retained in anticipation of litigation, regardless of whether litigation has been formally commenced. In MeadWestvaco Corp. v. Rexam, PLC, No. 1:10CV511 GBL/TRJ, 2011 WL 2938456 (E.D. Va. July 18, 2011), a defendant retained an expert after a potential plaintiff issued a written warning threatening to bring a lawsuit. After the plaintiff filed suit, the defendant made references in court proceedings to information provided to the expert and to a report prepared by him, but the defendant did not attempt to use the expert’s data or conclusions. Because the expert was not designated as a testifying expert, the court found that the expert’s report was protected as the work of a non-testimonial expert and was a privileged communication.

Factual Material Still Subject to Broad Discovery
Although the amended rule has provided new tools to maintain confidentiality and privilege between attorneys and experts, it still contains generous disclosure provisions in other areas. For example, the rule maintains an expansive interpretation of disclosure of attorney-expert communications containing “material of a factual nature.”

As noted above, amended Rule 26 makes a clear distinction between “facts or data” and “assumptions.” The onus of the rule is that attorney-expert communications should be protected but that material of a factual nature should still be susceptible to broad disclosure. Courts have yet to establish the parameters of this distinction, but there are indications that some courts will take an expansive view. In D.G. ex rel. G. v. Henry, No. 08-CV-74-GKF-FHM, 2011 WL 1344200 (N.D. Okla. April 8, 2011), a magistrate judge in the District of Oklahoma tested the limits of the new rule in a case addressing the constitutional and federal statutory rights of children in foster care. See also D.G. ex rel. G. v. Henry, 594 F. Supp. 2d 1273 (2009) (explaining the background of the case). On a motion to compel, the plaintiffs sought various materials from the defendant’s expert; namely, portions of the case file with notations or highlights, statutes and policies considered by the expert, and several summaries of material from case files prepared by the expert’s employees. The magistrate examined which of these materials constituted “facts or data” subject to disclosure.

The magistrate found that the portions of the case file with the expert’s notations or highlights were protected; however, the “statutes and policies considered by” the expert and the case summaries prepared by the expert’s employees were discoverable, factual material. Id. at *2.  The distinctions that the court made are subtle and not clear. By protecting the expert’s highlights and notations, the magistrate seemed to considered the highlights to be work product, particularly in light of the fact that the defendant produced the original case files without markings. But, at the same time, the court ordered disclosure of summaries prepared by the expert’s employees, even though the defendant had produced the original files.

This ruling highlights the importance of keeping material prepared by an expert separate from anything that contains factual materials. If the line between facts and work product are blurred, courts may be more inclined to compel disclosure. It is important to note that an expert still does not have free rein to communicate with employees or other collaborators in preparing reports. Attorneys and experts alike should be wary of communications that may inadvertently commingle discoverable and non-discoverable materials.

Questions Yet Unanswered
The importance of maintaining a separation between facts or data and other information is further highlighted by the lack of specific guidance for handling situations in which facts, data, assumptions, and other material used by an expert are difficult (or impossible) to categorize clearly. In such a scenario, it is unclear which standard (“relied on” or “considered”) would apply or whether the material is discoverable at all.

Furthermore, these distinctions are not as clear as they seem. Due to the nature of expert reports on technical subjects, it is often difficult to determine whether certain materials are factual in nature or constitute assumptions. Experts often incorporate theories or assumptions into their findings and treat such input as the equivalent of facts. Without guidance as to when a theory or assumption crosses the divide into factual material, experts may risk inadvertently disclosing information or risk sanctions for failing to disclose information, if a court decides that the theory or assumption is actually factual in nature.

Another potential area of confusion arises when an attorney discusses hypotheticals with an expert. Although the advisory committee’s notes clarify that the amended rule protects “general attorney-expert discussions about hypotheticals, or exploring possibilities based on hypothetical facts,” Fed. R. Civ. P. 26 advisory committee notes on 2010 amendments (emphasis added), the rule leaves open the possibility that an expert will have to disclose specific hypotheticals if they affect the expert’s conclusions. Thus, it is unclear if, or when, an attorney’s general discussions cross the line into specific assumptions relied on in an expert’s conclusions. Because this line is blurred, the rule penalizes vigilant attorneys, forces attorneys to speak as generally as possible, and hampers an important aspect of pretrial work.

Conclusion
The amended Rule 26 provides a more flexible standard for dealing with experts during discovery and, for the most part, should streamline the process by which counsel and their testifying experts prepare for discovery and trial. Nonetheless, due to the broad discovery exceptions that remain in the amended rule, counsel must remain vigilant in working with their experts. Attorneys must consider which material is factual in nature and isolate such material from communications or written items that may contain other material. Attorneys should also make it clear what role an expert will have in litigation, whether testifying or consulting. If the expert is being used for a dual purpose, the expert should be asked to segregate work in these dual roles or else run the risk of inadvertent disclosure.

When an attorney or other person communicating with an expert absolutely must disclose facts or data or assumptions, that person should isolate this material to the greatest extent possible and provide it in a separate communication. That person should also indicate whether the communication contains any disclosable material, specifying which material that is, and note that all other information is protected work product. Although the federal rules now provide greater protection for attorney-expert communications, the parameters of the amended rule are yet to be fully tested. For the foreseeable future, attorneys should continue to exercise caution in attorney-expert communications and closely monitor the case law developments interpreting the amended rule.


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