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DTCI: Attorney-expert communications

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butz-ashley-dtci By Ashley A. Butz

When you assist and prepare an expert witness and ask him to formulate his opinion, you may wonder whether your oral and written communications with the expert will be discoverable. Being required to disclose such communications in discovery depends on whether your case is in federal or state court since the federal and Indiana rules currently differ as to what is protected.

Which attorney-expert communications are protected in federal court?

Pursuant to Federal Rule 26, attorney-expert communications are not discoverable even when the expert will testify. The revised rule, which became effective in December 2010, contains language that dramatically limits expert discovery. Before 2010, parties had been able to discover anything that a testifying expert used in forming his opinion, including any strategy conversations with the attorney. As a result attorneys felt compelled to adopt a guarded attitude toward their interaction with testifying experts that impeded effective communications. Experts also adopted strategies that protected against discovery but also may have interfered with their work. Thanks to the 2010 amendments, attorneys may now interact with retained experts without fear of exposing those communications to discovery. Fed. R. Civ. P. 26 advisory committee’s note (2010).

Draft reports protected – Rule 26(b)(4)(B)

The federal rules now specifically extend work-product protection to drafts of any report or disclosure required under Rule 26(a)(2). The protection applies regardless of the form in which the draft is recorded, whether written, electronic or otherwise. Fed. R. Civ. P. 26 advisory committee’s note (2010); see Medicines Co. v. Mylan Inc., 2013 WL 2926944 (N.D. Ill. 2013)(denying plaintiff’s motion to compel defendant to disclose draft expert reports and communications between defendant’s attorney and its expert, and rejecting the contention that because the expert used a portion of a report prepared by another expert in a different case on the same issue, the expert had to disclose his draft reports).

Work product protected – Rule 26(b)(4)(C)

Subject to three exceptions, the federal rules now explicitly protect communications between a party’s attorney and an expert required to provide a report under Rule 26(a)(2)(B), regardless of the form of those communications. As with the protection afforded to draft reports, attorney-expert communications (whether oral, written, electronic or otherwise) are provided work-product protection. Fed. R. Civ. P. 26 advisory committee’s note (2010). Protected communications include those between the party’s attorney and assistants of the expert witness. Id.

Exception: communications regarding expert compensation – Rule 26(b)(4)(C)(i)

The first of the exceptions to the general prohibition against discovery of an attorney’s communication with its expert is attorney-expert communication regarding the expert’s compensation. This exception extends to all compensation for the study and testimony provided by the expert and includes compensation for work done by a person or organization associated with the expert. The objective is to permit full inquiry into potential sources of bias. Fed. R. Civ. P. 26 advisory committee’s note (2010).

Exception: facts and data provided by attorney and considered by expert – Rule 26(b)(4)(C)(ii)

Second, discovery of attorney-expert communications is permitted to the extent the communications identify facts or data that the party’s attorney provides to an expert and that the expert considers in forming his opinion. As such, materials considered by an expert containing facts may be discoverable. It is important to keep in mind that the disclosure obligation extends to any facts or data considered by the expert in forming the opinions to be expressed, not only those relied upon by the expert. The 7th Circuit Court of Appeals has held that “[a] testifying expert must disclose and therefore retain whatever materials are given to him to review in preparing his testimony, even if in the end he does not rely on them in formulating his expert opinion, because such materials often contain effective ammunition for cross-examination.” Hobson v. Dominguez, 2014 WL 806015, *4 (N.D. Ind. Feb. 28, 2014) (quoting Fidelity Nat’l Title Ins. Co. of N.Y. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 751 (7th Cir. 2005)). In Hobson, at the deposition of the plaintiff’s retained testifying medical experts, the defendants learned about materials received and reviewed by the experts that were not previously disclosed by the plaintiff or listed by the experts in their reports under the section listing evidence reviewed. Id. at *2. The experts testified during their depositions that they received and reviewed the materials but did not consider, use or rely on them in any way in forming their opinions. Id. The defendants sought disclosure of the materials, arguing that because the plaintiff’s experts reviewed the materials, even if they did not ultimately rely on them, the materials were considered by the experts in forming their opinions. Id. The District Court, applying Rule 26(b)(4)(C) and considering an agreement between the parties, ordered the plaintiff to produce the materials at issue. Id. at *5. The court further reopened fact and expert discovery for all parties solely related to the production of the materials at issue. Id. The defendants were granted leave to again depose the plaintiff’s retained experts regarding the materials, at the plaintiff’s cost, and defendants’ own expert was granted leave to provide an amended report based on the additional materials. Id. Finally, the defendants were granted leave to retain alternate or additional defense experts based on the additional materials. Id.

This exception does not, however, contemplate disclosure of theories or mental impressions of counsel. Communications with an expert about the potential relevance of facts or data are still protected. Fed. R. Civ. P. 26 advisory committee’s note (2010).See Citizens Ins. Co. of the Midwest v. LG Electronics, USA, Inc., 2013 WL 416005 (S.D. Ind. Feb. 1, 2013), where the District Court denied a party’s motion to compel various attorney-expert communications that fell outside the category required to be disclosed by any of the three exceptions to Rule 26(b)(4)(C). In Citizens, the defendants issued a deposition notice to the plaintiff’s expert and a subpoena for his file and other documents. Id. at *1. The plaintiff’s expert submitted his complete file to plaintiff’s counsel, who removed various pages from the file as privileged, including some of the emails and other correspondence between the expert and the plaintiff’s counsel, questions prepared by the expert for the plaintiff’s counsel’s use during the deposition of the defendant’s experts, and transcripts of electronic chats between the plaintiff’s expert and counsel compiled during the deposition of the defendant’s experts. Id. The plaintiff’s counsel did not remove emails to/from the expert related to the expert’s compensation, the facts or data provided by counsel, or the assumptions that the plaintiff’s counsel provided and that the expert relied upon when forming his opinions. Id.

Exception: assumptions provided by attorney and relied upon by expert – Rule 26(b)(4)(C)(iii)

Third, discovery of attorney-expert communications is permitted to the extent the communications identify assumptions counsel provided to the expert and that the expert relied upon in forming the opinions to be expressed. Unlike the exception for facts or data that includes all facts or data an expert considers, this exception is limited to those assumptions the expert actually does rely upon in forming the opinions to be expressed. General attorney-expert discussions about hypothetical situations or exploring possibilities based on hypothetical facts are outside this exception. Fed. R. Civ. P. 26 advisory committee’s note (2010). Strategy, last-minute thoughts and expected deposition questions are all protected unless the information forms the foundation of an opinion. See Citizens Ins. Co. of the Midwest v. LG Electronics, USA, Inc.,2013 WL 416005, at *2.

Exception: substantial need – Rule 26(b)(3)

Discovery regarding attorney-expert communications on subjects outside the three exceptions discussed above or regarding draft expert reports or disclosures is permitted only in limited circumstances and by court order. A party must show it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. However, it will be difficult for a party to make such a showing given the broad disclosure and discovery otherwise allowed regarding the expert’s testimony. See, e.g., Sara Lee Corp. v. Kraft Foods Inc., 273 F.R.D. 416, 421 (N.D. Ill. 2011)(the plaintiff failed to show a substantial need for materials where the plaintiff examined the data and methods underlying the defendant’s expert’s report, deposed the expert about the report and retained its own expert to rebut the report).

Federal Rules in practice

Federal Rules 26(b)(4)(B) and (C) apply to all forms of discovery. Fed. R. Civ. R. 26 advisory committee’s note (2010). With regard to expert depositions, keep in mind that merely admitting communications occurred does not qualify as disclosing the underlying communications.

Inquiry about communications the expert had with anyone other than the party’s counsel about the opinions expressed is allowed. On the other hand, counsel may object to questions at depositions regarding general communications between the attorney and the expert. Further, counsel may object to questions regarding communications between the attorney and expert associated with draft reports, especially questions related to the attorney’s input into a draft report or questions related to authorship. Finally, counsel should be sure to file a motion to compel an expert’s answers to objected-to questions before the close of expert discovery.

With regard to document requests to an expert, counsel may object to requests seeking all attorney-expert communications or draft expert reports. Further, counsel may object to discovery seeking materials containing assumptions the attorney provided to the expert on which he did not rely. On the other hand, an expert’s testing material involved in litigation and notes of any such testing are not protected. It may be wise to warn testifying experts that their notes, outlines, lists, letters and memoranda are not protected.

Attorney-expert written communications may cover many topics and, even when the excepted topics are included among those involved in a given communication, the protection applies to all other aspects of the communication beyond the excepted topics. Nonetheless, it may be wise to provide discoverable materials to experts separately, rather than hidden within email messages laden with work product. Counsel should limit written communications to experts to facts or data to be considered or the assumptions upon which he is to rely.

With regard to draft reports, counsel and experts should label draft expert reports as such. For example, label each page of a draft report with the words “Privileged Protected Rule 26(b)(4)(B) Draft Report.”

Finally, in preparing to object to discovery related to attorney-expert communications, it may be useful for counsel to ask experts to keep a list of materials that they have reviewed and relied on in forming their opinions.

Which attorney-expert communications are protected in state court?

Indiana has not adopted the 2010 federal amendments in its state rules, so the Indiana and federal rules currently differ. The Indiana rules distinguish between an expert who is expected to testify at trial and one who is not expected to testify by permitting broad discovery to the former but very limited discovery to the latter. White-Rodgers v. Kindle, 925 N.E.2d 406, 412 (Ind. 2010). Thus, under Indiana law, a party’s designation of a testifying expert is a crucial decision that directly affects the discovery protection provided by Indiana Rule 26(B)(4)(b).

Indiana’s Rule 26 allows for broad, but not unlimited, discovery of communications with testifying experts. In general, a party may discover the facts known and opinions held by an expert that are relevant to the subject matter of the action and developed in anticipation of litigation. Unlike the federal rules, the Indiana rules do not explicitly provide protection for draft reports or documents provided to the expert by the attorney. However, work product and privilege still apply, meaning an attorney’s opinions and mental impressions about a case, even if communicated to an expert, should not be discoverable. See Brown v. Katz, 868 N.E.2d. 1159 (Ind. Ct. App. 2007)(opinion work product is entitled to absolute protection from discovery).

The Indiana rules contemplate that such expert discovery may be obtained through interrogatories; although upon motion, a court may order further discovery by other means. There is very little caselaw regarding the extent that attorney-expert communications are discoverable. In practice, essentially all written communications between an attorney and an expert, including draft reports, are therefore fair game in state court discovery. See, e.g., Wegner v. Miller, 972 N.E.2d 984 (Ind. Ct. App. 2012)(trial court entered an order compelling discovery directing expert to provide all of her written communications and draft reports to defendant’s attorney).

As such, Indiana attorneys should be mindful of their communication with experts. Any documents otherwise protected by privilege or work product may be subject to discovery if used by a testifying expert to form an opinion. It may be wise just to avoid providing written communications to an expert containing mental impressions, opinions or theories with the materials that you offer the expert.•

Ms. Butz is an attorney in the Indianapolis office of Kightlinger & Gray and is a member of the Trial Tactics Section of the DTCI. The opinions expressed in this article are those of the author.
 

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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