Trial Magazine

Attorneys often fret and argue about the extent to which communications with retained experts or draft reports prepared by experts should be produced to opposing parties. But we can look to Federal Rule of Civil Procedure 26—and state counterparts that mirror the federal rule—for guidance on how to resolve this issue.

Rule 26, as amended in 2010, provides work product-like discovery protections for draft expert reports and certain communications between attorneys and experts. Specifically, Rule 26(b)(4)(B) protects “drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.” And Rule 26(b)(4)(C) protects communications between the party’s attorney and any witness who is required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications.

Exceptions to protection. The rules do except certain communications from protection: those that “relate to compensation for the expert’s study or testimony”; “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.”¹

The term “considered” is important and often at the crux of discovery disputes.² Facts or data that experts considered must be disclosed, even if they did not rely on those facts or data in reaching their opinions. This requirement is intended to be read broadly in favor of disclosure.³

However, assumptions communicated by counsel to an expert fall within the protection of Rule 26(b)(4)(C) unless the expert relied on those assumptions.

Materials that may not be protected. Courts have reached varying conclusions as to the extent of protection afforded by Rule 26 to different types of expert materials. Examples of expert materials that courts have not found to be protected from disclosure include:

• expert’s “notes, task lists, outlines, memoranda, presentations, and draft letters”⁴
• expert’s hand-written notes⁵
• expert’s notes in the margin of documents not prepared by the expert⁶
• summaries of case files prepared by an expert’s assistants that the expert considered⁷
• communications between non-attorney corporate employees and communications between testifying and non-testifying experts⁸
• spreadsheets and document analysis prepared by the plaintiff from the plaintiff’s own financial records and provided to the expert⁹
• draft reports not prepared in anticipation of litigation.¹⁰

Materials that may be protected. Examples of expert materials that courts have found are protected from disclosure include:

• expert’s “working notes”¹¹
• material highlighted or annotated by the expert¹²
• pages of calculations made by an expert and described by the court as “working notes”¹³
• notes created by an expert to assist the attorney in preparing to depose an adversary expert¹⁴
• a summary of facts and data (but not the underlying facts and data) that is the product of collaboration between an attorney and an expert¹⁵
• emails between an expert and an attorney collaborating on a valuation report.¹⁶

As these examples show, the protection available for expert material will be determined on a case-by-case basis and will be highly dependent on the facts and the record developed. Rule 26 is not intended to presumptively protect all expert materials as trial preparation materials. But the most important factor in the analysis is whether protecting the material at issue furthers the “driving purpose” of the 2010 rule amendments: to protect an attorney’s mental impressions, conclusions, or legal theories from discovery.¹⁷

Consulting experts. Take care when an expert retained only for consulting purposes later becomes a testifying expert. Protections are stronger for materials related to consulting experts, but those materials may lose substantial protection if the expert later takes on a testifying role.¹⁸ When there is ambiguity about the role an expert’s communications played, courts typically favor discovery over protection. Whether an expert “considered” information must be judged by a more objective standard—one that takes into account whether the expert reviewed information related to the facts or opinions expressed, regardless of when he did so or what role he held at that time.

When disputes over disclosure of expert materials arise, remember that the key to resolving the discovery issue is to look to the facts and not whether the defendant recited certain “magic words.” Never fail to put those words to the test.

Camille Godwin is the founder of the Law Office of Camille Godwin in Marietta, Ga., and can be reached at camille@camillegodwin.com.

Notes

1. Fed. R. Civ. P. 26(b)(4)(C) (emphasis added).
2. See, e.g., Damgaard v. Avera Health, 2015 WL 4993701 (D. Minn. June 18, 2015).
3. See Fed. R. Civ. P. 26 Advisory Committee Notes 2010 Amendment.
4. In re Application of the Republic of Ecuador, 280 F.R.D. 506, 512–14 (N.D. Cal. 2012).
5. Dongguk Univ. v. Yale Univ., 2011 WL 1935865, at *1 (D. Conn. May 19, 2011).
6. Wenk v. O’Reilly, 2014 WL 1121920, at *1 (S.D. Ohio March 20, 2014); but see D.G. ex rel. G. v. Henry, 2011 WL 1344200, at *1 (N.D. Okla. April 8, 2011) (materials highlighted and annotated by the expert were protected).
7. D.G. ex rel. G., 2011 WL 1344200, at *2.
8. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1191–92 (11th Cir. 2013); Whole Women’s Health v. Lakey, 301 F.R.D. 266, 270 (W.D. Tex. 2014); In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 2013 WL 3326799, at *6 (S.D.N.Y. June 28, 2013).
9. Fialkowski v. Perry, 2012 WL 2527020, at *1, *5 (E.D. Pa. June 29, 2012).
10. Safeco Ins. Co. of Am. v. M.E.S., Inc., 2013 WL 1680684, at *5 (E.D.N.Y. April 16, 2013).
11. In re Asbestos Prods. Liability Litig. (No. IV), 2011 WL 6181334, at *6 n.11 (E.D. Pa. Dec. 13, 2011).
12. D.G. ex rel. G., 2011 WL 1344200, at *2.
13. Etherton v. Owners Ins. Co., 2011 WL 684592, at *2 (D. Colo. Feb. 18, 2011).
14. Int’l Aloe Sci. Council, Inc. v. Fruit of the Earth, Inc., 2012 WL 1900536, at *2 (D. Md. May 23, 2012).
15. Davita Healthcare Partners, Inc. v. United States, 128 Fed. Cl. 584, 591 (Fed. Cl. 2016).
16. United States v. Veolia Env’t N. Am. Operations, Inc., 2014 WL 5511398, at *6 (D. Del. Oct. 31, 2014).
17. Republic of Ecuador v. Mackay, 742 F.3d 860, 870 (9th Cir. 2014).
18. United States ex rel. Steven Scott v. Humana, Inc., 2021 WL 3909906, at *3 (W.D. Ky. Aug. 31, 2021).