Expert Materials and Drafts

Expert Materials and Drafts

Expert discovery is where work product protection meets a disclosure duty. A testifying expert specially retained for trial must produce, before trial, a report containing “a complete statement of all opinions to be expressed and the basis and reasons therefor” and “the data or other information considered by the witness in forming the opinions,” and the opposing party may depose her.¹ Anything counsel tells such an expert therefore risks reaching the opponent.

Rules 26(b)(4)(B) and (C) answer that risk by extending both tiers of Rule 26(b)(3) to expert materials. Subsection (B) applies the protections of Rules 26(b)(3)(A) and (B) to drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.² Subsection (C) applies the same two subsections to communications between a party's attorney and any witness required to provide a report under Rule 26(a)(2)(B). It also ignores form, but it carves out exceptions for communications that fall within the categories the Rule lists.³ Those exceptions belong to the study of expert discovery and are not developed here. You need only know that they exist and mark the edge of the protection.

Because both subsections borrow Rule 26(b)(3), the familiar layering carries over. Material in a draft or communication that records only facts receives the qualified protection: the requester may try to show that it has substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means.⁴ Material that reveals counsel's mental impressions, conclusions, opinions, or legal theories sits behind the mandatory shield, which the court must preserve even when it orders discovery of the rest.⁵

Two older decisions show the problem that the current text now addresses. In re Cendant Corp. Securities Litigation, Ernst & Young's counsel retained a litigation consultant, Dr. McGraw, and discussed with him counsel's view of the important facts, the parties' contentions, and Ernst & Young's trial themes, theories, and strategies. Ernst & Young asserted that it expected those communications to stay confidential, and that had it expected otherwise, it would not have retained him or would have severely curtailed what counsel told him.⁶ The district court had concluded that Rule 26(b)(3), which protects this category of attorney work product, “must give way” to Rule 26(b)(4), the expert-discovery rule. The Third Circuit found no support for that conclusion in the text.

The reason lies in how the expert rule attaches to work product. Rule 26(b)(3) opened with a proviso, “Subject to the provisions of subdivision (b)(4) of this rule,” which means that trial-preparation material prepared by an expert is discoverable only under the special requirements of Rule 26(b)(4). That proviso introduces only the first sentence of Rule 26(b)(3). It does not limit the second sentence, which restricts disclosure of work product containing “mental impressions” and “legal theories.”⁷ Rule 26(b)(3) therefore protects work product independently of the expert rule, just as the court had held in Bogosian v. Gulf Oil Corp. that attorney opinion work product shown to experts in an antitrust case was not discoverable. The court added that litigation consultants retained to aid in witness preparation may qualify as non-attorneys protected by the work product doctrine.⁸

Read Cendant with the numbering in mind. When it refers to Rule 26(b)(4)(B), it uses the numbering of its day for the protection of non-testifying experts, which now appears at Rule 26(b)(4)(D) and permits discovery only on a showing of “exceptional circumstances.” That protection echoes work product under Rule 26(b)(3), and for similar reasons: non-testifying experts are fully involved in preparing the case, from educating counsel on a specialized profession to developing theories of recovery, sifting testimony, and producing exhibits.⁹ Today's Rule 26(b)(4)(B) is the draft-report provision quoted above.

The tension sharpens when counsel's thinking goes to a testifying expert, as in Gall v. Jamison. The Colorado Supreme Court, reading the state rule alongside its federal counterpart, described the disclosure rule for testifying experts as sharing “an uneasy coexistence” with the work product doctrine that Hickman v. Taylor established and Rule 26(b)(3) codified.¹⁰ The court resolved that tension in favor of disclosure and treated work product that counsel communicated to a testifying expert as discoverable. It cautioned, however, that such communications may also contain legal analysis that counsel never communicated. The parties should redact that material, and the district court may review it in camera if necessary.¹¹

The two decisions differ in who received counsel's thinking. In Cendant, a litigation consultant who helped prepare a witness received it, he was not a testifying expert, and the mental-impression sentence of Rule 26(b)(3) held. In Gall, a testifying expert received it, and her duty to disclose what she considered prevailed. Beneath that difference lies a doctrinal gap. Some courts have seemingly treated certain opinion work product as ironclad, yet the Supreme Court has made no commitment concerning the correct standard for revealing it.¹² Gall also predates the current subsections (B) and (C). Those subsections address the same collision directly by extending the protections of Rules 26(b)(3)(A) and (B) to drafts and to attorney-expert communications for report-required witnesses, subject to the listed exceptions.¹³

Two opposite errors cost points on an exam answer here. The first cites Gall for the proposition that everything a testifying expert considered, opinion work product included, is open to discovery; that states the older text, not the current Rule. The second treats attorney-expert communications as sealed absolutely, which ignores the exceptions the Rule lists. Start from the text of subsections (B) and (C), confirm that the witness is one required to provide a report, and then apply the fact-versus-opinion analysis used throughout this chapter.