In response to our recent reporting on the potential vulnerability of expert draft reports, Roger Grabowski (Duff & Phelps) drew our attention to a key federal appeals court ruling that discusses the discoverability of expert notes.

In a complex dispute with Chevron, the Republic of Ecuador asked the court to order the production of documents that included personal notes from one of Chevron’s technical experts as well as that expert’s communication with other expert witnesses and some Chevron employees who were not attorneys. The court decided that most of the documents were discoverable. Chevron challenged the finding with the 11th Circuit Court of Appeals.

Work-product protection: The reviewing court first determined the documents were relevant to the case. Therefore, unless they were privileged or had work-product protection, they were subject to discovery. The work-product doctrine is incorporated in federal discovery Rule 26(b)(3)(A). In a nutshell, the doctrine protects an attorney’s notes, memos, and any writing prepared “in anticipation of litigation” from discovery by the opposing party. Rule 26(b)(3)(A) specifically includes in the protection “consultant, surety, indemnitor, insurer, or agent.” However, it does not mention “expert,” the 11th Circuit points out. Instead, Rule 26(b)(4) expressly addresses work-product protection for experts, but protects only drafts of expert reports and attorney-expert communication.

The 11th Circuit noted that, unlike an attorney or the attorney’s representative, a testifying expert is brought into a case “to provide independent, impartial, qualified opinion testimony helpful to the trier of fact.” Because that expert testifies in court, the opposing side must have a chance to thoroughly question the expert, “including [asking] how and why the expert formed a particular opinion.” For a meaningful cross-examination, it is critical not to “cloak” all materials a testifying expert prepares or that are prepared for him or her under the work-product doctrine, the court said. Accordingly, Rule 26(b)(3) does not protect the personal notes of an expert or his or her non-attorney communication from discovery.

Further, Rule 26(a)(2)(B) and the 2010 amendments also don’t offer protection. The amended Rule 26(a)(2)(B) allows discovery of “all materials considered by a testifying expert, except the core opinion work-product of attorneys,” the 11th Circuit noted. By withholding the expert’s personal notes and email communication with fellow experts, Chevron tried to shield the expert’s theories and mental impressions, the court observed. But, “Rule 26 provides no basis for this, neither before nor after the 2010 Amendments,” the 11th Circuit concluded.

Takeaway: No work-product protection for an expert’s personal notes and/or expert communication with non-attorneys under Rule 26.

The case is Republic of Ecuador v. Hinchee, 2013 U.S. App. LEXIS 25102 (Dec. 18, 2013).

Extra: A free download of the court’s decision is available here.