Expert Drafts and Communications

Rule 26(b)(4) gives work-product protection to two kinds of expert material, and it does so by borrowing: each provision invokes Rules 26(b)(3)(A) and (B) instead of building a new shield. 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.¹ Rule 26(b)(4)(C) protects communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of form, except to the extent of the exceptions the rule lists.² The first question for any expert document is therefore categorical: is it a draft of a required report or disclosure, or a communication of the kind the rule names?

The protection grows from the same root as the doctrine itself. In the facts of Hickman, four survivors of an accident testified at a public hearing, and the record of that testimony was available to every interested party. Counsel then interviewed the survivors privately, with an eye toward the anticipated litigation, and took statements from them.³ The public testimony was open to all; the private interviews were counsel's own preparation. Drafts and lawyer-expert messages are the same kind of thing at the expert stage: the working process behind a product the opponent will receive anyway. Discovery exists to reveal facts, to aid in formulating the issues, and to freeze testimony so as to prevent perjury,⁴ and the report the expert must disclose, together with the expert's testimony, supplies the expert's position for those purposes. A lawyer who knew that every draft and every message could be demanded would have reason to keep tentative thinking off paper, and the report would suffer for it.

These protections belong to experts whose work will be disclosed. A retained expert who is not expected to be called at trial falls under a different standard. Except for an examining physician, facts or opinions may be obtained from that expert only on a showing of exceptional circumstances under which it is impracticable for the party to obtain them by other means, and most cases refuse to find such circumstances.⁵

Draft Reports and Disclosures

The draft provision turns on two phrases. The words “any report or disclosure” reach whatever Rule 26(a)(2) requires of an expert, not only the full written report, so a draft of a shorter required disclosure is protected too. The words “regardless of the form in which the draft is recorded” make the medium irrelevant: a word-processing file, a marked-up printout, a scanned page, and an emailed attachment are protected alike. A party cannot lose the protection by working informally.⁶

The protection reaches drafts of the required report or disclosure, and the finished report stays outside it.⁷ Because Rule 26(a)(2) requires the report, it is the very item the opponent is meant to receive. A student who reasons that the final report must be protected because its drafts are has reversed the rule.

Attorney-Expert Communications

The communications provision protects exchanges between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), in whatever form, except to the extent of the exceptions the rule lists.⁹ Three features of that text matter. First, the protection is keyed to a witness who must provide a (B) report. That category is narrower than the draft provision's “any report or disclosure,” so by its terms the communications protection does not cover a witness who gives only a disclosure, even though drafts of that disclosure are protected. Second, the protection is form-neutral: emails, letters, and notes of calls stand on the same footing. Third, the rule lists its own exceptions. Those belong to the broader treatment of expert discovery and are not catalogued here, but they decide how to state the rule: these communications are protected subject to the listed exceptions, never absolutely. On an exam, read the facts for any sign that an exception is in play before calling a communication protected.

The logic parallels the drafts. A lawyer's messages to an expert show which theories the lawyer wants tested and which weaknesses worry the lawyer. That is counsel's private preparation in a new setting, the same kind of material the Hickman interviews were.

The two results fit together. The opponent gets the expert's finished product and does not get the lawyer's side of the working conversation.