Brief Fact Summary. The Plaintiff, Krista (Plaintiff), sought production of preliminary reports and other documents created by the Defendant, Equitable Life Assurance Society’s (Defendant), expert witnesses in connection to Plaintiff’s insurance disability claim denial lawsuit.
Synopsis of Rule of Law. Preliminary reports and opinions made by expert witnesses who are expected to testify at trial are not protected under the work product doctrine and are therefore discoverable. Communications made by litigant’s counsel to their expert witnesses with regard to matters that are protected by the work product doctrine are not discoverable.
Issue. Whether draft reports prepared by an expert witness designated to testify at trial are covered by the work product doctrine.
Whether the data or other information considered by an expert witness in the formation of his opinions under FRCP Rule 26(a)(2) overcomes the protection of protected work product under FRCP Rule 26(b)(3) when it is disclosed to an expert witness.
Whether transmittal letters from counsel to an expert witness are subject to discovery.
Held. Defendant will be required to produce all documents it has withheld with the exception of two documents that contain core work product.
Draft reports and other documents prepared by expert witnesses are not covered by the work product protection.
The disclosure requirements of FRCP Rule 26(a)(2) do not overcome the protection accorded counsel’s mental impressions, conclusions, opinions and legal theories when such core work product is disclosed to an expert witness.
Transmittal letters are subject to discovery.
Discussion. Defendant claimed that the work product protection extended not only to documents prepared in anticipation of trial by a party’s attorney, but also to a party’s consultant or agent. The Defendant insisted that the draft reports were protected work product material under FRCP Rule 26(b)(3). However, the Court noted that Defendant disregarded FRCP Rule 26(b)(4), which authorized the depositions of any person who had been identified as experts and whose opinions may be presented at trial. Further, Defendant asserted that Defendant’s counsel did not write any portion of the final report or make specific suggestions with respect to the content of the report and did not request that the report be prepared in such a way to bring about a predetermined outcome. From this, the Court reasoned that since Defendant’s counsel’s mental processes and opinions were not contained in the experts’ draft reports, the request of production of these documents would not invade the privacy to be
accorded Defendant’s trial counsel in developing litigation theories and strategies.
The second issue in this case asked whether core attorney work product shared with a party’s expert was discoverable. Citing the Court of Appeals for the Third Circuit, this court reasoned that FRCP Rule 26(b)(3)’s protection of core attorney work product was not trumped by FRCP Rule 26(b)(4). This was further explained to mean that the marginal value on cross-examination that the expert’s view may have originated with an attorney’s opinion or theory did not warrant overriding the strong policy against disclosure of documents consisting of core attorney’s work product. Disclosure of core work product to a testifying expert did not abrogate the protection accorded such information. Accordingly, the documents embodying communications between Defendant’s counsel and Defendant’s expert witnesses were reviewed to ascertain whether they contained core attorney work product.
The pertinent question in review of the third issue was not whether Defendant was obligated by FRCP Rule 26(a)(2) to produce voluntarily the transmittal letters in question, but whether the letters in question fell within the broad ambit of discovery afforded by FRCP Rule 26(b)(1). This rule authorized discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Since Defendant did not claim privilege to these letters, they were discoverable.