Expert notes are subject to discovery, 11th Circuit says

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

We recently reported on a case in which annotated expert draft reports were subject to discovery notwithstanding Federal Rule of Civil Procedure 26(b)(4). Valuation professionals who frequently work on federal cases also need to know that Rule 26 does not protect expert notes and nonattorney communication, as an important 11th Circuit ruling explains.

The issue came up in a multilayered dispute involving the Republic of Ecuador and Chevron. Ecuador asked the federal district 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 district court decided that most of the documents were discoverable, and Chevron appealed the finding with the 11th Circuit Court of Appeals.

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. Here, neither of these protections was available, the Court of Appeals concluded.

The work product 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.” Critically, it does not mention “expert,” as 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. (As the recent ruling on draft reports makes clear, even they may be discoverable.)

Further, the 11th Circuit found, Rule 26(a)(2)(B) and the 2010 amendments also don’t offer protection.

By clicking here, you can find out why that is the case and obtain a free download of the Court of Appeals' decision.