Work Product Privilege under the New Expert Discovery Ohio Civil Rule 26(B)(5) – Part III
A Cuyahoga County Trial Court Order
Recently, a Cuyahoga County post-amendment trial court order compelled the production of a draft expert report in the medical malpractice case of Groves v. Ihsanullah, M.D., et al., Cuyahoga County Case No. CV-12-787437. In Groves, the plaintiff’s attorney provided the plaintiff’s expert with a draft report that had been previously authored by another doctor. The report became a part of the expert’s file and was referenced (and read from) in the expert’s deposition.
A dispute arose as to the discoverability of the report under the new protections afforded under Civ. R. 26(B)(5). The defense then filed a “motion to compel production of relevant materials contained in the file of the plaintiff’s expert.”
Plaintiff argued to the Court that the report was prepared in anticipation of litigation, constituted work product, was a draft of the other doctor’s opinion, and contained opinions that could be discovered simply by taking the other doctor’s deposition. Therefore, the plaintiff argued, the report was not discoverable pursuant to Rule 26. The defendant countered that the other doctor’s report was provided to the plaintiff’s expert, was contained in the plaintiff’s expert’s file, and that to the extent the plaintiff’s expert testified at his deposition concerning the contents of the report, the report was not a draft and contained facts known to the plaintiff’s expert that he considered.
The Court conducted an in camera inspection of the document and considered the parties’ arguments. In its judgment entry, the Court cited the November 16, 2012 Sixth District decision of Masters v. Kraft Foods Global, Inc., 6th Dist. No. L-11-1273, 2012-Ohio-5325, which was an appeal from a September 27, 2011 pre-amendment trial court order. Masters makes no reference to Civ. R. 26(B)(5)(c) or (d). Rather, Masters held that (1) under Civ. R. 26(B) parties may obtain discovery regarding any relevant matter, including books, documents, and electronically stored information, and (2) Civ. R. 26(b)(5)(b) expanded the scope of discovery to expert opinions relevant to the subject matter. In adopting the position of the Masters Court (which had dodged discussion of the newly amended Civ. R. 26(B)(5)(c)&(d)), the Cuyahoga County Court found in favor of the defendant and granted the motion to compel. The plaintiff was ordered to produce the draft report of the other expert that was contained within the plaintiff’s expert’s file.
Although it relies on a potentially questionable Sixth District decision, the Groves case demonstrates that a document that is a draft report upon its initial creation can become discoverable if put in another expert’s file. If an attorney desires a draft report to remain a non-discoverable draft under Civ. R. 26(B)(5)(c), the attorney must treat the document as a true draft between the attorney and the expert who drafted it only and not provide it to others.
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