I. FED. R. CIV. P. 26(b)(4)(C): COMMUNICATIONS BETWEEN ATTORNEYS AND EXPERTS

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1 National Employment Lawyers Association PREVENTING WAGE THEFT: A Two-Day Guide To Litigating Cases Involving Wages, Hours & Work Friday, March 8- Saturday, 9, 2013 Holiday Inn Chicago Mart Plaza, Chicago, IL Use of Experts in Wage & Hour Cases: How the 2010 Amendments to Rule 26 Will Affect Your Work With Experts Sam J. Smith Loren B. Donnell Burr & Smith, LLP 442 W. Kennedy Blvd., Suite 300 Tampa, Florida (813) ssmith@burrandsmithlaw.com On December 1, 2010, significant changes were made to Federal Rule of Civil Procedure 26 as it relates to expert witness disclosures. The primary intent of the 2010 amendments to Rule 26, as explained in its advisory committee notes, was to make it explicit that attorney-expert communications (with certain exceptions) and experts draft reports and disclosures are protected work-product. The advisory committee for the Rule 26 amendments noted that these changes were made to address undesirable effects of the 1993 amendments which were often relied on by courts to require disclosure of all attorney-expert communications and all draft reports. See Fialkowski v. Perry, 2012 U.S. Dist. LEXIS 91165, *8-9 (E.D. Pa. June 29, 2012). This paper serves as a review of the commentary and case law developing on these two key changes to Rule 26 and to evaluate whether these changes will facilitate the candid exchange of information with experts that the Rule aimed to foster. 1 OVERVIEW Prior to the 2010 amendments to Rule 26, attorneys were cautious in their communications with testifying experts and operated under the general assumption that all communications with testifying expert witnesses would be discoverable. This is because prior to the 2010 amendments, Rule 26(a)(2)(B)(ii) required disclosures of all data or other information considered by the witness in forming their opinion, which resulted in many courts ordering disclosure of all attorney-client communications and draft reports. The advisory committee notes for the 2010 amendments recognized that this routine discovery into attorneyclient communications and draft reports has had undesirable effects, and that because of it, 1 According to the Order of the Supreme Court dated April 28, 2010, the 2010 amendments shall govern pending cases insofar as it is just and practicable. Henriksen v. United States, 2011 U.S. Dist. LEXIS (N.D. Ill. Apr. 29, 2011); see e.g. Daugherty v. Am. Express Co., 2011 U.S. Dist. LEXIS 30486, (W.D. Ky. Mar. 23, 2011) (applied to case pending for three years). 1

2 [c]osts have risen as [a]ttorneys may employ two sets of experts one for purposes of consultation and another to testify at trial to avoid disclosure of sensitive and confidential case analysis. Thus, Rule 26(a)(2)(B)(ii) was amended to limit disclosures to the facts and data considered by the witness in forming their opinions, a stark change from all data or other information that was previously required, and new Rules 26(b)(4)(B) and (C) were enacted to explicitly state that draft reports and disclosures and all but three types of attorney-expert communications are protected work product. I. FED. R. CIV. P. 26(b)(4)(C): COMMUNICATIONS BETWEEN ATTORNEYS AND EXPERTS Even though Rule 26(b)(4)(C) expressly states that communications, regardless of form, between attorneys and their Rule 26(a)(2)(B) experts are work product protected, 2 carved out of Rule 26(b)(4)(C) are three specific exceptions. Still discoverable after the 2010 amendments are communications that: (i) (ii) (iii) relate to compensation for the expert's study or testimony; identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. Any communication with experts required to provide a report under Rule 26(a)(2)(B) that do not fall under one of these three exceptions is protected work-product, 3 unless a party seeking such discovery makes the showing that it has a substantial need for the discovery and cannot obtain the substantial equivalent without undue hardship, as specified in Rule 26(b)(3)(A)(ii). 4 2 Fed. R. Civ. P. 26(b)(4)(C) states: Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications. A party may not ordinarily discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) absent a showing by the requesting party of "substantial need for the materials to prepare its case" and an inability, without undue hardship, [to] obtain their substantial equivalent by other means. Fed. R. Civ. P. 26(B)(3)(A). If The Court Orders Discovery Of Those Materials, It Must Protect Against Disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. Fed. R. Civ. P. 26(b)(3)(B). 3 See e.g., GenOn Mid-Atlantic, LLC v. Stone Webster, Inc., 2011 U.S. Dist. LEXIS , *45-46 (S.D.N.Y. Nov. 10, 2011) (finding a letter outlining an expert s experience and qualifications did not fail under one of the three exceptions and did not need to be produced). 4 But see Graco, Inc. v. PMC Global, Inc., 2011 U.S. Dist. LEXIS 14717, (D.N.J. Feb. 14, 2011) (Even if the party seeking discovery of information otherwise protected by the work product doctrine has made the requisite showing under 26(b)(3)(A)(ii), courts must still protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney and his agents. ). 2

3 The protections made explicit by Rule 26(b)(4)(C) extend to communications between attorneys and an expert s assistants or staff, but do not extend to communications solely between experts themselves. See In re Republic of Ecuador & Diego Garcia Carrion, 2012 U.S. Dist. LEXIS , *7-8 (N.D. Fla. Nov. 2, 2012) (finding [c]ommunications between [defendant s] attorneys or staff members and [the expert] or his staff members are protected even if other experts or their staff members participated in or incidentally received copies of the communications unless the communications come within the three exceptions set out in the rule ). A. Communications that relate to compensation for expert s study or testimony: The first exception is clear. Communications that relate to compensation for expert s study or testimony extends to all compensation, including any benefits derived from the expert s study or testimony. Therefore, communications that concern future work an expert may obtain due to their study or testimony in the present case is discoverable. See Fed. R. Civ. P. 26, 2010 amendments advisory committee notes. This also includes communications that relate to compensation for work done by a person or by the organization associated with the expert. Id. The purpose of this exception is to allow examination of an expert s potential bias. Id. B. Identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed: The second exception is trickier than the first, it concerns communications provided by attorneys to experts identifying facts or data the expert considered in forming their opinions. The advisory committee notes for the 2010 amendments explain that facts or data is meant to limit disclosure to material of a factual nature and specifically excludes theories or mental impressions of counsel from discovery. However, while narrowing the scope of discoverable information with its use of the language facts or data, the amended Rule allows discovery of all facts or data considered by the expert in forming their opinions to be expressed. The definition of considered, which was left unaltered by the 2010 amendments, requires disclosure of any information furnished to a testifying expert that such an expert generates, reviews, reflects upon, reads, and/or uses in connection with the formulations of his opinions, even if such information is ultimately rejected. Fialkowski, 2012 U.S. Dist. LEXIS 91165, *8-9 (internal citation omitted). Thus, facts or data is to be interpreted broadly in that it requires disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. Fed. R. Civ. P. 26, 2010 amendments advisory committee notes. The few decisions evaluating facts or data... the expert considered in forming the opinions to be expressed, have closely followed the Rule. In In re Asbestos Prods. Liab. Litig., 2011 U.S. Dist. LEXIS , *18-25 (E.D. Pa. Dec. 13, 2011), the court determined, following in camera review, that transmittal letters attorneys provided expert physicians with blanks that the physicians were to complete regarding individuals exposure, medical, and smoking histories were "communications" that identify "facts or data" and thus were discoverable. Also, in Northwest Home Designing, Inc. v. Golden Key Constr., Inc., 2012 U.S. Dist. LEXIS (W.D. Wash. Feb. 10, 2012), the court found information given to an 3

4 forensic accountant relevant to the evaluations of the plaintiff s damages, including electronic information from QuickBooks, as well as physical records provided to him by defendant, were discoverable facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed. In Fialkowski, 2012 U.S. Dist. LEXIS 91165, *4, because the expert admitted to considering the requested materials, including the plaintiff s (who was also an attorney) own thirty-nine page assessment of discovery documents, the court found the facts or data that the expert considered or the assumptions the expert relied on in these materials were discoverable under Rule 26(b)(4)(C). In Sara Lee Corp. v. Kraft Foods, Inc., 273 F.R.D. 416, (N.D. Ill. 2011), following in camera review, the court found that the requested communications were not communications [that] contain facts or data... that [the expert] could have considered in assembling his expert report. The court determined that communications between the attorneys and the expert which concerned advising the defendants on how they might conduct a pilot of an advertisement, did not include the communication of facts or data considered in the expert s opinion because the expert did not conduct the survey and did not have knowledge of the results of the survey. Thus, the court found the expert could not have considered the survey in forming his opinions. The court acknowledged that while [s]uch expert-attorney communications arguably may have been discoverable under the pre-amendment Rule [it was] no more [after the 2010 amendments]. Importantly, communications between attorneys and experts discussing the relevance of or usefulness of facts and data are not communications identifying facts and data and can be withheld as work product. This is because communications evaluating facts and data are protected mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. See In re Asbestos Prods. Liab. Litig., 2011 U.S. Dist. LEXIS , *22, n.10 (finding that, while the 2010 amendments do not protect facts, data, or assumptions provided by an attorney to an expert witness, they do protect mental impressions, conclusions, opinions or legal theories of a party's attorney ) (internal citations omitted. In United States v Acres of Land, 2011 U.S. Dist. LEXIS 87661, *3-7 (S.D. Miss. Aug. 8, 2011), the court agreed with the advisory committee notes that communications about the potential relevance of the facts or data are protected. See also Graco, Inc. v. PMC Global, Inc., 2011 U.S. Dist. LEXIS (D. N.J. Feb. 14, 2011) (same). 5 C. Identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed The third exception requires disclosure of assumptions provided by attorneys to their experts that the expert relied on in forming their opinions; however, this exception does not include general attorney-expert discussions about hypotheticals, or [the] exploring [of] possibilities based on hypothetical facts. Fed. R. Civ. P. 26, 2010 amendments advisory committee notes. The expert must have relied on the assumptions in forming their opinions expressed, not simply considered them, for the communications to be discoverable. Notwithstanding, and perhaps a bit confusing, the advisory committee notes for the See also Energy Law Journal, Article: How Will The Expanded Discovery Protections Of The Federal Rules Of Civil Procedure Affect Ferc Discovery Practice?, 33 Energy LJ 537, 548 (2012). 4

5 amendments state that the new rules do not limit inquiry of the expert s testing of material involved in litigation and notes of any such testing. Further, it provides that counsel remain free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues to evaluate whether or not the expert considered them in forming the opinions expressed. Id. II. FED. R. CIV. P. 26(b)(4)(B): DRAFT REPORTS Under new Rule 26(b)(4)(B) work product protection attaches to all draft reports and disclosures required under Rule 26(b)(3)(A) and (B), regardless of the form in which the draft is recorded. Such protected disclosures may include draft worksheets prepared by the experts or the expert s assistants. However, this protection does not extend to the expert's own development of the opinions to be presented outside of draft reports. See also Republic of Ecuador v. Bjorkman, 2012 U.S. Dist. LEXIS 709, at *17 (D. Colo. Jan. 4, 2012) ( Clearly, it is the intention of the rules committee to protect the mental impressions and legal theories of a party s attorney, not its expert. ). While seemingly contrary to the goal of the amended rules to reduce costs and the need for duplicative experts, and to encourage more open exchange and dialogue between attorneys and their experts with the result of improved quality of testimony, several courts have found that expert notes are not protected draft reports under Rule 26(b)(4)(B). In In re Application of Republic of Ecuador, 2012 U.S. Dist. LEXIS 32135, *12-14 (N.D. Cal. Mar. 9, 2012), the court found notes, task lists, outlines, memoranda, presentations, and draft letters authored by the expert had to be disclosed because they were not protected as draft reports and were not independently protected as work product. See Fed. R. Civ. P. 26, 2010 advisory committee notes (noting that Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions. For example, the expert's testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule."). Based on this the court directed that [t]o the degree Respondents specifically assert certain documents are draft reports... or believe other materials that are the subject of this dispute properly fall under the protection afforded to draft reports, they shall expressly explain how each document or documents fall within the protection and shall provide the documents to this Court for an in camera review within five days of the date of this Order. Similarly in In re Asbestos Prods. Liab. Litig., 2011 U.S. Dist. LEXIS , *18-25, the court ordered the disclosure of testifying physicians handwritten notes, finding they were not protected as draft reports, but rather reflected the physicians own interpretations of the results he was retained to analyze. In In re Republic of Ecuador & Diego Garcia Carrion, 2012 U.S. Dist. LEXIS , 9-11 (N.D. Fla. Nov. 2, 2012), the court interpreted the 2010 amendment s silence on the issue of expert s own notes supported the determination that expert notes are not privileged. In support of this interpretation, the court recognized that it was the widespread view prior to the 2010 amendments that the attorney-client privilege and work-product doctrine did not protect a testifying expert's own notes or communications with another testifying expert. Id. at *8. The 5

6 court stated, that this being the longstanding view and with [t]he care with which rules amendments are crafted and reviewed, makes it virtually impossible [in its view] that [not explicitly protecting expert notes] was an oversight. Id. Even though the court recognized that permitting an expert s notes to be discoverable would be contrary to one of the issues the 2010 amendments were enacted to address, because protections were limited to draft reports, expert notes were discoverable. Id. at *9-10 However, other courts have interpreted drafts of any report or disclosure.... regardless of the form in which the draft is recorded broadly. See Rule 26(b)(4)(B). In Etherton v. Owners Ins. Co., 2011 U.S. Dist. LEXIS 21992, *5 (D. Colo. Feb. 18, 2011), the court protected an expert s working notes from disclosure because the amended rules apply to drafts of any expert report, regardless of form. Likewise, in D.G. v. Henry, 2011 U.S. Dist. LEXIS 38709, *8 (N.D. Okla. Apr. 8, 2011), the defendant sought an exact copy of the case files reviewed by the expert, that the defendant had produced to the plaintiffs in the course of discovery, arguing that the case files may have notations or highlights on them. The court determined that notations or highlights on the case files are not facts or data and are protected under Rule 26(a)(2)(B)(ii). Id. However, the court did rule that statutes and policies considered by the expert in forming his opinions are facts or data which must be produced. Id. *8-9. In addition, the court determined that summaries prepared by the expert s readers or assistants who obtained facts from case files, were material considered by the expert that contains factual ingredients and were not drafts of the report protected from disclosure by Rule 26(b)(4)(B). Id. at *9. CONCLUSION As it now stands the 2010 amendments to Rule 26 were enacted to protect both draft reports and attorney-expert communications as work product. The purpose was to encourage direct communication with experts and to allow attorneys to share their mental impressions and legal theories with their experts without the risk of waiving work product. Counsel can anticipate probing deposition questions seeking to access what facts and data the expert considered in forming their opinions and the assumptions on which they relied to determine if documents were improperly withheld under Rule 26(b)(4)(C). Counsel can also anticipate deposition inquiry into the expert s testing of material involved in litigation and notes of any such testing as the 2010 advisory notes support this inquiry and it may uncover documents a court may find discoverable under Rule 26(b)(4)(B) or (C). While draft reports are protected, whether scribbles, jots, notes, and memos are protected as well is less clear. At least one court has advised against ascribing all expert notes as draft reports and endorsed the view that [c]ourts would not seem to be receptive to such an obvious loophole, and caution dictates against embarking upon such a course without the support of new case law in support of such a practice." In re Asbestos Prods. Liab. Litig., 2011 U.S. Dist. LEXIS , at *23, n. 10 (internal citation omitted). In camera review of these documents is to be expected, so tracking work product shared with experts on a privilege log is advisable, and will be useful if the of work product designation of these documents is challenged. Also, remember, only the non-protected information will need to be produced because redacting work product is permissible. See e.g. Fialkowski, 2012 U.S. 6

7 Dist. LEXIS 91165, *2 (ordering the plaintiff to only produce the parts of the requested documents that fell within the exceptions). 7