Title: Experts and the Discovery/disclosure of Protected Communication
Abstract: THE COMPLICATED relationship between the Federal Rules of Civil Procedure and the Federal Rules of Evidence impacts discovery before trial and disclosure at trial of attorney-client communications and attorney work product material related to expert witness testimony. Courts have taken different views on the questions raised in this area, particularly concerning whether communications must be produced, as well as the scope and contours of such production. (1) Fed. R. Civ. P. Rule 26 makes this issue of discovery even more acute and pressing, particularly the question what materials are considered protected information. A ruling compelling pretrial discovery or production/disclosure or a preclusion order may well mean the difference between winning and losing a lawsuit. Consequently, practitioners should be able to recognize the issues, be knowledgeable concerning the decisions concerning those issues, and be to how best to proceed. This article addresses various problems that have arisen concerning the question of disclosure of attorney work product material. Sections I through III below explore the case law preceding the December 1, 2010 amendments to Rule 26 directed to the issue of discovery of communications between counsel and her expert. Section IV examines the December 2010 amendments to the Federal Rules and how those amended rules impact the scope of expert discovery. I. Protected Communication Fed. R. Civ. P. Rule 26(b)(3) protects work product of both the attorney and the party--a showing of substantial need is required before production will be ordered. (2) However, the plain language of the rule refers to documents only. Are oral communications discoverable? Are they (or should they be) given more, less or the same protection? Some existing case law suggests that both documents and oral communication may be equally discoverable. (3) The impressions, conclusions, opinions or legal theories of an attorney or a party, have been referred to as core or opinion work product, and Rule 26 generally provides that the courts shall protect against disclosure. (4) Is this type of material discoverable? And if so, under what standard? In Upjohn v. United States, (5) the Supreme Court granted special protection to core work product without (1) ruling whether core work product is always protected or (2) articulating a detailed standard. Fed. R. Civ. P. Rule 26(b)(1) also protects against discovery of privileged communications. Rule 501 of the Federal Rules of Evidence looks to applicable Federal common law and, in cases decided by state law, to state law to determine whether a communication is communication. (6) The laws of most states consider attorney-client communication as privileged. II. Losing the Privilege An example will allow us examine how the discovery/disclosure issues often arise. As you assist and prepare an expert witness and request her to formulate her opinion, you obviously will talk to her and share documents. Questions that arise from these common activities include: * Have you relayed attorney-client communications? * Have you provided some of your opinions, thoughts, mental impressions? * Have you given her some work product documents? * Have you orally communicated attorney-client communications? * Are these discoverable? * Under what procedural or evidentiary rules might your opponent claim they are? And * Under what circumstances might they be discoverable, i.e., has the expert relied upon/considered the information given to her in formulating her opinion? * When are they discoverable? During pretrial proceedings? At trial? At both stages? * Are the rules governing production/disclosure the same during both trial and pretrial proceedings? These questions arise because you have provided either in written or oral form sensitive information to your expert. …
Publication Year: 2011
Publication Date: 2011-04-01
Language: en
Type: article
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