Work Product Privilege under the New Expert Discovery Ohio Civil Rule 26(B)(5) – Part II
Communications Between an Attorney and an Expert Witness
The July 1, 2012 amendments provide more specific guidance relative to the extent of the discoverability of communications between attorneys and testifying experts. Civ. R. 26(B)(5)(d) echoes the December 2010 amendment to Federal Rule 26 and now explicitly provide for a general rule of work product protection as it relates to communications between “a party’s attorney and any witness identified as an expert witness” – regardless of the form of the communications. The Rule then provides for three distinct exceptions where communications between attorneys and testifying experts are not protected. The three exceptions are as follows:
(i) communications that relate to compensation for the expert’s study or testimony;
(ii) communications identifying facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; and
(iii) communications identifying assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
As to first exception, the self-evident rule of the discoverability of communications related to expert compensation remains unchanged. If an attorney is communicating with an expert in any way concerning the expert’s fees or the payment of such fees, the communication does not enjoy work product protection.
As to the second exception regarding communications identifying facts or data, the expert must have “considered” the attorney’s communication such that the facts or data within the communication were actually passed upon in forming the opinions that the expert will express. If an attorney communicates facts or data to an expert, but the expert does not consider the facts or data in forming his or her opinions to be expressed, then the communication identifying the facts or data remains subject to work product protection and does not need to be disclosed.
As to the third exception regarding communications identifying assumptions, the expert must have “relied on” the attorney’s communication such that the assumption within the communication actually played a part in forming the opinions that the expert will express. If an attorney communicates an assumption to an expert, but the expert does not rely on the assumption in forming the opinions to be expressed, then the communication identifying the assumption remains subject to work product protection and does not need to be disclosed.
Compare the use of the word “considered” in the second exception regarding communications identifying facts or data as opposed to the use of the words “relied on” in the third exception regarding communications identifying assumptions. Such seems to suggest that the second exception’s “considered” language applies to a broader range of materials than the third exceptions “relied on” language. This is because an expert may “consider” a broad range of materials but ultimately only “rely on” a small portion of the materials that he or she initially considered when forming the opinions to be expressed.
Another way to look at the issue is as follows. If an expert, while in the process of forming his or her opinions to be expressed, “considers” a communication from an attorney which identifies facts or data, the communication is discoverable – even if the expert merely considers the communication and does not rely on it in forming his or her opinions. However, if an expert, while in process of forming his or her opinions to be expressed, merely “considers” a communication from an attorney which identifies assumptions of the attorney, but the expert does not “rely on” the assumptions, the communication is not discoverable because the expert did not rely on the assumptions in forming his or her opinions.
With respect to both the “facts or data” and “assumptions” exceptions, it is important to note the last three words, which are “to be expressed.” Regardless of what facts, data, or assumptions that an expert “considered” or “relied on” in forming his or her various opinions, if he or she is not going to actually “express” the opinions, then the communication identifying such facts, data, or assumptions do not need to be disclosed.
Currently there are no known Ohio appellate cases interpreting Civ. R. 26(B)(5)(d). As such, the door is open for attorneys to argue to the trial courts how the Rule should be interpreted, including subsections (i), (ii), and (iii). Once again, it is relatively clear that absent an abuse of discretion, a trial court’s decision would stand on appeal. State ex rel. Ebbing, supra.
Federal courts that have interpreted the similarly worded Federal Rule have found it “extends work product protection to most communications between trial counsel and experts.” Meds. Co. v. Mylan Inc., 2013 U.S. Dist. LEXIS 82964 (N.D. Ill. June 13, 2013). Discovery regarding attorney-expert communications on subjects outside the identified exceptions is permitted only in the “rare” case where a party establishes it has a substantial need for the discovery and cannot obtain the substantial equivalent without undue hardship. Innovative Sonic, Ltd. v. Research in Motion, Ltd., 2013 U.S. Dist. LEXIS 28238 (N.D. Tex. Mar. 1, 2013).
Despite the relatively broad protection, it has been stated that the Rule protects only communications between the expert and the attorney who retained the expert. Amco Ins. Co. v. Mark’s Custom Signs, Inc., 2013 U.S. Dist. LEXIS 53803, 9-10 (D. Kan. Apr. 16, 2013). Because the Rule protects only communications with the retaining attorney, notes by a party’s non-attorney agents regarding communications with a testifying expert are not protected. Id. However, for purposes of the rule, an attorney may communicate through others in the office—another attorney, a paralegal, or another staff member—as may an expert. In re Republic of Ecuador, 2012 U.S. Dist. LEXIS 157497 (N.D. Fla. Nov. 2, 2012). Any ambiguity with respect to the potential disclosure of attorney-expert communications should be resolved in favor of production. In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 2013 U.S. Dist. LEXIS 92237 (S.D.N.Y. June 27, 2013).
Federal courts have likewise found that communications between a lawyer and the lawyer’s testifying expert are subject to discovery when the record reveals the lawyer may have “commandeered” the expert’s function or used the expert as a conduit for his or her own theories. Gerke v. Travelers Cas. Ins. Co. of Am., 289 F.R.D. 316, 328 (D. Or. 2013). An example would be where an attorney essentially writes an expert draft report him or herself and convinces the expert to sign off. When the record presents such a possibility, the lawyer may not use the attorney work product privilege as a shield against inquiry into the extent to which the lawyer’s involvement might have “affected, altered, or corrected” the expert’s analysis and conclusions. Id.
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