Introduction to the Issue
Ohio attorneys are often presented with the issue of the disclosure of drafts of expert reports and disclosure of communications between attorneys and expert witnesses. Must drafts of expert reports be turned over upon a discovery request from opposing counsel? Are the drafts subject to work product protection? Does it “depend,” and if so, on what? How about the communications exchanged between the attorney pertaining to the expert’s opinions and the creation of the expert report?
Last year, Ohio Civil Rule 26(B)(5) was amended to provide lawyers and judges more guidance with respect to this topic. However, much confusion still exists as to the precise meaning and exact application and protections created by the new Rule. There is also very little case law at this time to assist in clarifying the issue. It is important for attorneys to understand precisely what the new Rule says (and does not say) relative to which specific communications are protected from disclosure (and which are not).
Drafts of Expert Reports
Before last year’s amendments, the issue of disclosing drafts of expert reports had been treated a variety of different ways by a variety of courts. It was not unheard of for courts to issue orders requiring that parties produce “each and every report and writing” of an expert and require such a disclosure “as a condition precedent and prerequisite to their testifying at trial.” See e.g. Mockensturm v. Luxaire, Inc., 6th Dist. No. L-83-245, 1985 Ohio App. LEXIS 6452.
As of July 1, 2012, Ohio Civil Rule 26(B)(5) was amended to provide more specific protection and guidance relative to the extent of the discoverability of drafts of expert reports. In the spirit of the December 2010 amendment to Federal Civil Rule 26, Ohio Civil Rule 26(B)(5)(c) now explicitly provides for a general rule of attorney work product protection as it relates to expert report drafts. This protection includes drafts of “any report” provided by “any expert” – regardless of the form in which the draft is recorded.
It is important to note that the new “draft report protection” is not ironclad. Specifically, the protection remains subject to the “good cause” exception set forth in Civ. R. 26(B)(3) relative to the discovery of trial preparation materials. In other words, if an attorney can show good cause as to why he or she should be entitled to a draft of an expert report, a court may order that the draft report be produced. However, the protection is clearly broad and will likely preclude the need to turn over draft reports in most cases. At least one federal court interpreting the similar Federal Rule has explicitly stated that the party seeking to show exceptional circumstances under the draft report Rule “carries a heavy burden.” Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 684 (N.D. Ga. 2012).
Currently, there are no known Ohio appellate cases interpreting Civ. R. 26(B)(5)(c). As such, the door is open for attorneys to argue to trial courts how the Rule should be interpreted. It is relatively clear that absent an abuse of discretion, a trial court’s decision would stand on appeal. State ex rel. Ebbing v. Ricketts (2012), 133 Ohio St. 3d 339, 342.
Federal courts that have interpreted the similarly worded Federal Rule have stated that it protects drafts of any report or disclosure, but does not otherwise protect expert reports or disclosures from discovery. Quality Time, Inc. v. West Bend Mut. Ins. Co., 2012 U.S. Dist. LEXIS 161703 (D. Kan. Nov. 13, 2012). For example, the protection of draft reports does not extend to the expert’s own development of the opinions to be presented outside of draft reports. In re Application of Republic of Ecuador, 280 F.R.D. 506, 513 (N.D. Cal. 2012).
It should also be noted that Rule 26 work product protection relative to expert draft reports can be subject to waiver via disclosure to an adversary. Sarachek v. Luana Savings Bank (In re Agriprocessors, Inc.), 2012 Bankr. LEXIS 3361, 12-13 (Bankr. N.D. Iowa July 20, 2012). Therefore, it is important to keep draft reports confidential and ensure that they are not disclosed in any capacity.
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