The Draft Expert Report—Caught In The Tug of War Between Full Disclosure and The Work Product Doctrine
By Willamette Management Associates Business Valuations, Economic Analysis, Financial Advisory & Expert Witness Services
Call James J. O’Sullivan, J.D., CPA, and Richard T. Cordano, Esq. at (800) 933-0288
There is a split in authority in the federal courts regarding the discoverability of attorney work product provided by counsel to his or her expert and in particular, the discoverability of draft expert reports. Most jurisdictions have ruled that the 1993 amendment to the Federal Rules of Civil Procedure makes it clear that any materials provided by counsel to a testifying expert is discoverable, including information contained in draft reports.
The retention of an expert, the formation of his or her expert opinion, and the creation of his or her expert report are all part of an overall process that should be carefully planned and monitored. In this overall process, a particularly important issue is the treatment of draft expert reports. Often, these reports contain indications of core attorney work product. Core attorney work product may include the legal counsel’s legal strategies, mental impressions, and case conclusions.
Although federal courts agree that so-called “fact” work product communicated to a testifying expert is discoverable, a disagreement remains as to the discoverability of “opinion” or “core” work product.1 Inclusion of core work product in the draft expert report or expert workpapers is often hard to avoid. Many times, counsel will provide the expert with detailed case information—not to influence his or her opinion, but rather to assist in selecting between multiple experts or as an economical means of bringing the expert up to speed. As a result, the case law concerning the discoverability of work product, even if it does not directly involve draft reports, is relevant to this issue.
Currently, the extent to which a court will allow discovery of an attorney’s communication with a testifying expert, including drafts of expert reports, depends on (1) the nature of the communication and (2) the applicable jurisdiction. The uncertainty over the discoverability of attorney expert communications in general, and draft expert reports in particular, has a significant impact on the way that attorneys and experts communicate.
An expert’s opinion evolves over time as the expert filters the facts of the case and the documents reviewed through his or her experience and expertise. With the evolution of the expert’s opinion comes the evolution of the expert’s report.
Often the evolution of the expert report is memorialized in drafts, either maintained in the expert’s files or transmitted to counsel. These draft reports represent a snap shot of the expert’s (potentially incomplete) understanding of the facts of the case and the documents reviewed to date. Opposing counsel may want to use the draft reports to cross-examine the expert on both (1) the evolution of his or her opinion and (2) the extent of the input provided by counsel.
Discovery disputes have arisen, pitting the liberal discovery regime provided by Federal Rule of Civil Procedure 26(a)(2) against the traditional protection afforded to work product as expressed in Federal Rule of Civil Procedure 26(b)(3).
DUELING FEDERAL RULES 26(a)(2)(B) AND 26(b)(3)
To start, it may be helpful to review the federal expert witness disclosure requirements found in Federal Rule of Civil Procedure 26 (a)(2)(B):
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony. . . , be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. (emphasis added).
The scope of discoverable material under Federal Rule of Civil Procedure 26 includes all information “considered” by the expert, even if the information was not relied on in forming his or her final opinion. With the obligation to disclose information comes the obligation to retain the information.2 The obligation to retain this information has often been interpreted by the court to include draft expert reports.3
However, as discussed more fully below, at least one court has ruled that the obligation to retain draft expert reports does not arise directly from the Federal Rules. Rather, the obligation arises only following a proper demand from opposing counsel.
Contrast the liberal disclosure requirements of Federal Rule of Civil Procedure 26(a)(2)(B) with the work product protection afforded by Federal Rule of Civil Procedure 26(b)(3):
Subject to the provisions of subdivision (b)(4) . . . , a party may obtain discovery of documents . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s . . . consultant, . . .) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. (emphasis added).
Rule 26(b)(3) codifies the traditional work product doctrine as described by the Supreme Court in 1947 in the case of Hickman v. Taylor.4 Generally, the work product doctrine protects materials prepared by the attorney in anticipation of litigation. It also helps to prevent a lazy or less-capable attorney from taking a free ride on the research and analysis of an adversary and allows a diligent lawyer to feel comfortable in committing his thoughts to paper. Prior to 1993, there was general agreement that Federal Rule of Civil Procedure 26 excluded the discovery of attorney opinion work product, even when provided to testifying experts.
THE ADVISORY COMMITTEE NOTES TO THE 1993 AMENDMENT TO THE FEDERAL RULES
The 1993 amendments to the Federal Rules of Civil Procedure altered the playing field when it came to the discovery of draft expert reports. As a result of the 1993 amendments, the Federal Rules changed to require the disclosure of an expert’s report outlining his or her expected testimony.
In particular, the Advisory Committee notes to the 1993 Amendment contained the following comments:
The report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert’s opinions. Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions—whether or not ultimately relied upon by the expert—are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.5
Since the 1993 amendments, two distinct lines of cases have formed that reach opposite conclusions with regard to the discoverability of draft expert reports.
The first line of cases is supported by a minority of courts. These cases hold that the attorney work product doctrine continued to protect from disclosure the attorney’s opinion work product information shared with the testifying expert and/or found in a draft expert report.6
Many, if not most, of the cases that interpret the 1993 amendment, however, adhere to the second line of cases. These cases have ruled in favor of full discovery of the work product provided to experts—including full discovery of any draft expert reports.7 In most of this second line cases, the courts rely heavily on the advisory committee notes that accompanied the 1993 amended Federal Rules of Civil Procedure.
The first line of cases, beginning with Haworth Inc. v. Herman Miller Inc., held that attorney work product is not discoverable merely because it has been shared with a testifying expert.8 The district court in Haworth concluded that the expert disclosure provisions added by the 1993 amendments did not alter the pre-amendment rule. The pre-amendment rule was that attorney opinion work product disclosed to testifying experts was immune from discovery.9
The Haworth decision was based on the venerable principle of Hickman v. Taylor,10 which states that the work product doctrine generally protects from disclosure documents prepared by or for an attorney in anticipation of litigation or for trial, and pre-amendment Sixth Circuit precedent in Toledo Edison Co. v. GA Techs., Inc.11 That decision held that Federal Rule of Civil Procedure 26 categorically excludes the discovery of opinion work product even when provided to testifying experts.12
As Haworth stated, “[f]or the high privilege accorded to attorney opinion work product not to apply would require clear and unambiguous language in the statute.”13 The Haworth Court did not find any statutory language to change the long-standing work product doctrine as it existed prior to the 1993 Amendments. Therefore, the court declined to depart from the doctrine of absolute privilege that traditionally attached to attorney opinion work product.14
The second line of cases, including In re Pioneer High-Bred Int’l. Inc.,15 adopted the contrary view. That view was that the 1993 amendment to Federal Rule of Civil Procedure 26 “create[d] a bright-line rule requiring disclosure of all information provided to testifying experts.”16 In the most recent case, the 6th United States Circuit Court of Appeals in the case of Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC joined the second line of cases in ruling for full disclosure of attorney work product provided to experts.
The Sixth Circuit held as follows:
The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes. Therefore, we now join the “overwhelming majority” of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.17
According to commentators, one of the reasons that the courts appear to favor liberal discovery of attorney work product provided to experts and draft reports is to prevent counsel from improperly influencing the expert’s opinion. The commentary to Rule 26(a)(2)(B) recognizes that the attorney may need to assist the expert, but reflects a concern that attorneys may improperly spoon-feed the expert:
Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed. Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.18
This duty of full disclosure will deter attorneys from providing undue influence by allowing counsel to cross examine the expert on the assistance he or she received from the hiring attorney.
RECENT DEVELOPMENTS IN THE DUTY TO RETAIN DRAFT EXPERT REPORTS – UNIVERSITY OF PITTSBURGH V. TOWNSEND
In a recent case, the University of Pittsburgh alleged that the defendants misappropriated the University’s rights and interests in certain medical scanning technology.19 During depositions, the defendants learned that the plaintiff’s experts (1) had exchanged drafts of its expert report with counsel and (2) had incorporated certain suggestions from counsel in the final report. The plaintiff’s experts testified that they did not save copies of their draft reports.
The defendants moved the court to sanction the plaintiff for spoliation of evidence by excluding the testimony of plaintiff’s proposed experts. Defendants argued that, as a result of the spoliation, they were unfairly prejudiced and denied the opportunity to cross-examine the witnesses as to counsel’s contributions to their expert reports.
The defendants first made a request for production of documents provided to experts over a year before expert disclosure was required under Federal Rule of Civil Procedure 26. That original document request included a demand for “all documents provided to or by you to, revised by, relied upon, or otherwise used in consultation with or as a basis for consultation with, any expert witness identified by you pursuant to Fed. R. Civ. Proc. 26 (a)(2).”
In its response, plaintiff objected to this request as premature. And, the plaintiff stated that “responsive documents will be produced in accordance with Federal Rule of Civil Procedure 26(a)(2).”
Over a year later, after experts were identified in accordance with Federal Rule of Civil Procedure 26, defendants served a subpoena on plaintiff’s experts commanding them to appear for a deposition and produce, among other things, drafts of their report. In the deposition, the plaintiff’s experts testified that (1) they kept only one working draft of their expert reports and (2) they had not retained any successive drafts or marked-up versions of the draft reports.
In its motion to the court, the defendant argued that draft expert reports and communications between experts and counsel were discoverable pursuant to Rule 26(a)(2). The defendants further argued that Rule 26(a)(2) imposed an affirmative duty upon an expert “to preserve all documents, including e-mails and drafts of a report.” The defendants contended that, because the plaintiff’s experts and counsel destroyed discoverable evidence, the plaintiff should be sanctioned by precluding the experts from testifying at trial.
The court disagreed. In his opinion, Judge Shirley writes:
Contrary to the defendants’ assertion, the Court does not read Rule 26(a)(2) to impose an “affirmative duty” upon an expert to preserve “all documents,” particularly report drafts, and the defendants do not cite any support for such a sweeping obligation. Nor does Rule 26(a)(2) require that draft reports be disclosed as part of an expert disclosure. While not technically a required subject of disclosure, and contrary to the plaintiff’s arguments, draft reports are certainly discoverable, and the defendants contend that they requested any and all expert report drafts in their February, 2005 discovery requests. This discovery request, however, is far from the model of clarity. The request seeks the production of “[a]ll [d]ocuments provided to or by [y]ou to, revised by, relied upon, or otherwise used in consultation with or as a basis for consultation with, any expert witness. . . .” Even if this awkwardly worded request could be construed to require production of draft reports (and the Court finds it does not), the Court finds that this request, served well over a year prior to the date that any expert disclosures were required to be made, to be an unreasonable request, essentially imposing a continuing obligation on a party to disclose any document from an expert—whether it be a letter or a draft report—as it is received through the consultation process. Such a requirement would virtually nullify the expert disclosure deadline established by the Court.
Perhaps most importantly, the court went on to state that only at that point that the subpoena was served were the experts under a duty to retain any drafts and produce them at their depositions.
Although this case does not change the landscape on the overall issue of the discoverability of draft expert reports, it does create a wrinkle in the debate over the corresponding duty to preserve draft reports. An interesting dilemma arises when counsel seeks to obtain draft expert reports and question the expert on counsel’s role in the report preparation process.
There is no obligation to disclose an expert when he or she is first retained. Therefore, much of the expert’s analysis and drafting may be complete and drafts may have be discarded prior to formal disclosure under Rule 26.
Therefore, when should counsel serve the subpoena that creates the affirmative duty on the part of the expert to retain drafts of the report? Clearly, if counsel waits until the expert is disclosed under Rule 26, it may be too late. At the same time, if it is done too far in advance of expert disclosure, it may be considered premature and unreasonable.
THE AMERICAN BAR ASSOCIATION SUPPORTS A CHANGE IN THE FEDERAL RULES
The American Bar Association weighed in on the issue in the summer of 2006. At its annual meeting in Honolulu, the American Bar Association decided to push for a federal rule change to protect expert draft reports from discovery. The ABA’s House of Delegates voted 207-137 to recommend adding to Federal Rule of Civil Procedure 26(a)(2) a privilege for draft reports and communications between attorneys and their experts.
The proposed amendment was patterned on a 2003 rule change in New Jersey that exempted certain “preliminary or draft reports” and attorney-expert communications from discovery.20 In September 2006, the measure was presented to the U.S. Judicial Conference Advisory Committee on Civil Rules, the committee responsible for adopting revisions to the Federal Rules of Civil Procedure.
The text of the ABA resolutions reads as follows:21
RESOLVED, That the American Bar Association recommends that applicable federal, state and territorial rules and statutes governing civil procedure be amended or adopted to protect from discovery draft expert reports and communications between an attorney and a testifying expert relating to an expert’s report, as follows:
(i) an expert’s draft reports should not be required to be produced to an opposing party;
(ii) communications, including notes reflecting communications, between an expert and the attorney who has retained the expert should not be discoverable except on a showing of exceptional circumstances;
(iii) nothing in the preceding paragraph should preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his or her opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches or into the validity of the expert’s opinions.
FURTHER RESOLVED, That the American Bar Association recommends that, until federal, state and territorial rule and statutory amendments are adopted, counsel should enter voluntary stipulations protecting from discovery draft expert reports and communications between attorney and expert relating to an expert’s report.
In the words of the report that accompanied the now-approved proposal:
The draft of a “report” is an iterative process by which the expert’s analysis is refined, often with false starts. What should matter in litigation is not how the expert arrived at his or her final conclusion, but whether that conclusion holds water and can stand scrutiny tested on its merits.22
Those who voted against the proposal did not see the lack of national uniformity as a problem. The resolution’s opponents also contended that many developments take place during discovery and litigants should be allowed to examine the draft reports to resolve uncertainties.23
Jeffrey J. Greenbaum, is a partner at Sills Cummis Epstein & Gross P.C. and the co-chair of the ABA task force that issued the report to the ABA House of Delegates. Greenbaum gave an interview to The Metropolitan Corporate Counsel, which provided interesting insight into the thought process behind the resolution.24
Greenbaum noted that the task force’s goal was “to bring uniformity to the inconsistent practices around the country that now vary by jurisdiction and judge.”
Greenbaum further noted that “[w]orking with experts has become a cumbersome process because of the possibility that draft reports and communications might ultimately be disclosed.”
Greenbaum stated that, in his experience, “[w]hen there are differences between early drafts and the final report, juries have been misled into believing that the attorney-client collaboration was improper, [even though] Federal Rules recognize that there should be collaboration between experts and the lawyers who hire them.”
Greenbaum also pointed out the negative economic impact of the current Federal Rules when he stated:
In cases where expert drafts and notes are produced, burdensome depositions have resulted where each line of the report is examined against earlier drafts. The expert then has to explain each change. The time and cost of discovery is increased dramatically with usually little resulting benefit.
In Greenbaum’s opinion, the restrictive rules have led companies with more resources to hire “two experts where one is a consulting expert and the other is the trial expert. The consulting expert’s reports are never disclosed so counsel will work with them and then hire a trial expert when the arguments have been tested. While this process protects the client from the extra level of discovery, it is costly and not available to those with limited resources.”
Finally, Greenbaum observed that, from an attorney’s perspective, he would like “to be able to use [his] expert to the full extent possible without fear of creating discoverable material that can unfairly hurt [his] case.” As an example of this position, Greenbaum stated that he “may want his expert to provide help in cross-examining another expert and critiquing the other expert’s report. Without protection, [he] cannot do that comfortably without risk of disclosure and discovery.”
SUMMARY AND CONCLUSION
Although the ABA has weighed in on the issue, it was the closest vote of the annual meeting. Sentiment in the overall legal community is difficult to gauge because the desire for either full disclosure or work product protection depends entirely on whether you are proffering the expert or cross-examining the expert.
Either way, until the Supreme Court addresses the issue, or the Federal Rules are changed, expert retention and preparation will continue to be a source of discovery disputes. In the meantime, attorneys and their experts should proceed from day one under the assumption that their communications will be discoverable.
1. See Wilson v. Wilkinson, No. 2:04-CV-00918, slip. op. at 6-9 (S.D. Ohio May 19, 2006).
2. Lawrence W. Treece, Experts and the eDiscovery Problem, A.B.A. Sec. of Litig. Annual Conference (April 11-14, 2007) (“if draft reports and communications are even arguably discoverable, then the duty to preserve them attaches”).
3. See Trigon Ins. Co. v. United States, 204 F.R.D. 277, 288-89 (E.D. Va. 2001).
4. Hickman v. Taylor, 329 U.S. 495 (1947).
5. Fed. R. Civ. Proc. 26 Advisory Committee Notes (emphasis added).
6. Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 296-97 (W.D. Mich. 1995).
7. Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 at 15 (6th Cir. August 17, 2006); In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370 (Fed. Cir. 2001).
8. Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. at 292-96.
10. Hickman v. Taylor, 329 U.S. 495, 510-12 (1947).
11. Toledo Edison Co. v. GA Techs., Inc., 847 F.2d 335, 339-41 (6th Cir. 1988).
12. Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. at 292-96.
13. Id. at 295.
14. Discussion taken from the decision in Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, No. 05-5754 at 15 (6th Cir. August 17, 2006).
15. In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d at 1375.
16. Reg’l Airport Auth. of Louisville and Jefferson County v. LFG, LLC, No. 05-5754 at 15 (6th Cir. August 17, 2006).
17. Ibid., at 17.
18. Fed. R. Civ. Proc. 26(a)(2)(B) Advisory Committee Notes.
19. University of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007).
20. N.J. Ct. Rules 4:10-2(d)(1) & 4:17-4(e).
21. Resolution of the American Bar Association House of Delegates, adopted August 7-8, 2006.
22. ABA Section of Litigation Federal Practice Task Force Report, at 3 (August 2006).
23. Lisa Brennan, “ABA Delegates Pass Measure to Shield Experts’ Drafts From Discovery,” New Jersey Law Journal, August 15, 2006.
24. Reduce Costs and Protect Expert Draft Reports and Communications with Expert Witnesses—An ABA Proposal that Corporate Counsel Should Consider Supporting, The Metropolitan Corporation Counsel, December 2006, at 26 (col. 1).
ABOUT THE AUTHOR: James J. O’Sullivan, J.D., CPA, and Richard T. Cordano, Esq.
James O’Sullivan is a senior manager in our New York City office.
Richard Cordano is a partner in the firm of Russo, Karl, Widmaier & Cordano PLLC located in Hauppauge, New York. Rich specializes in complex commercial litigation. Rich can be reached at (631) 265-7200.
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