How Far Do the Protections of the Rule 26 Amendments Go?

The 2010 Amendments to Rule 26
The changes were prompted by a general consensus that the scope of expert discovery was inhibiting a litigant’s ability to present a case. The drafting committee recognized that expert discovery under the current rule is largely a waste of effort and “inhibits robust communications between attorney and expert trial witness, jeopardizing the quality of the expert’s opinion.” Report of Civil Rules Advisory Committee (rev. June 15, 2009). Given that too much time was spent in discovery seeking draft reports that did not exist and expert correspondence that yielded no discoverable events, the committee noted that extending the “work-product protection to some attorney-expert communications and to all drafts of Rule 26(a)(2) disclosure or reports is profoundly practical.” Generally stated, the committee’s goal was to increase the quality and utility of expert-witness reports and to narrow the scope of discovery inquiries, thereby reducing the burden of expert discovery.

The committee thus amended Rule 26(a)(2)(B)(ii)’s report requirement. A report previously was required to disclose the “facts or other information” on which it relied. It now must disclose the “facts or data” on which it relied.

The committee also amended Rule 26(b)(4). Rule 26(b)(4)(B) now protects “drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.” Rule 26(b)(4)(C) extended protection of communications between attorneys and experts with the exception of (1) communications that involve compensation, (2) the facts or data received from the attorney that the expert considered in forming the opinion, and (3) any assumptions the attorney provided to the expert that the expert used in forming the opinion.

Courts Narrowly Apply the Work-Product Protections  
The question of how to apply the work-product protections has been repeatedly addressed in the ongoing litigation between Chevron and Ecuador concerning the validity of the $9.1 billion Lago Agrio judgment. The parties litigated across the country about the discovery of expert materials, generating at least three published appellate decisions thus far where Ecuador sought information from Chevron’s experts. Carrion v. For the Issuance of a Subpoena Under 28 U.S.C. § 1782(a) (In re Republic of Ecuador), 735 F.3d 1179, 1187 (10th Cir. 2013); Republic of Ecuador v. Hinchee, 741 F.3d 1185 (11th Cir. 2013); Republic of Ecuador v. Mackay, 742 F.3d 860 (9th Cir. 2014).

In all three cases, Chevron argued that materials that were prepared by the expert or for the expert are protected under Rule 26(b)(3)(A). In effect, Chevron urged the courts to broadly apply the work-product protections to anything prepared by an expert witness. All three circuits rejected Chevron’s interpretation. The Tenth Circuit Court of Appeals explained that the phrase “party or its representative” contained in Rule 26(b)(3)(A) implies an agent or a person acting in a fiduciary capacity, but there has been no showing that “an expert would have capacity to act on behalf of a party in this case.” Carrion, 735 F.3d at 1184.

Similarly, the Eleventh Circuit in Hinchee, noted that the phrase “party or party’s representative” contained within Rule 26(b)(3)(A) included “the other party’s attorney, consultant, surety, indemnitor, insurer, or agent” but did not mention expert. The Eleventh Circuit recognized that this silence was important especially “in light of the fact that right after subsection (b)(3), Rule 26 contains another provision expressly dealing with experts.” Hinchee, 741 F.3d at 1190. Therefore, the Eleventh Circuit rejected Chevron’s argument that Dr. Hinchee’s personal notes and email communications with other experts were protected under the work-product doctrine. Such an interpretation “would render parts of Rule 26(b)(4) superfluous. . . .” Id. at 1192.

The Ninth Circuit followed suit in Mackay, rejecting Chevron’s broad interpretations regarding Rule 26’s work-product protections. The Ninth Circuit acknowledged that Rule 26(b)(3) extends protections to “materials” and Rule 26(b)(4) provides some protections to “experts,” but the court found the fact that these protections were addressed in different sections to be telling. The Ninth Circuit explained that the committee intentionally omitted “experts” in the text of Rule 26(b)(3), leading to the conclusion that “materials” protected under Rule 26(b)(3) did not include experts. Mackay, 742 F.3d at 866–67. The Ninth Circuit further explained that if the committee had intended Chevron’s interpretation, “it would have been much simpler and clearer for it to declare that all expert materials are protected as trial preparation materials and then set forth exceptions to that general rule.” Id. at 867.

Alternatively, Chevron argued that Rule 26(b)(4) protected the information sought. All three courts declined to adopt such an interpretation. The Tenth Circuit noted that the purpose of the 2010 amendments to Rule 26 was to return to the original understanding of the work-product doctrine—protection of an attorney’s mind. The Tenth Circuit further noted that discovery was not limited to factual information underlying the expert’s opinion but the committee’s changes suggest a preference for broad discovery of expert materials. 

The Eleventh Circuit likewise narrowly construed Rule 26(b)(4)’s protections. The court explained that the rule included all material considered by the testifying expert with the exception of the attorney’s work product. The Ninth Circuit followed the reasoning of the other two circuit courts, stating that the purpose of the 2010 amendments to Rule 26 was to exclude discovery of the attorney’s mental impressions, conclusions, opinions, or legal theories. The committee’s changes sought a balance between the importance of an attorney’s ability to confer and strategize with experts and an adversary’s ability to engage in meaningful expert discovery.

Practical Consideration
If these three decisions can be considered bellwethers, then only attorney “core opinion work product” is protected. Even then, separating work product from facts and assumptions could be difficult in some cases. The result is still that attorneys must carefully consider what and how they communicate with testifying experts.

Keywords: litigation, pretrial practice, discovery, expert witnesses, Rule 26, discovery, work product

Michael Lowry is a shareholder with Thorndal Armstrong Delk Balkenbush & Eisinger, P.C., in Las Vegas, Nevada, and blogs on civil discovery issues.

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