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.