Showing 55 of 55 results

Chapter: 49.2

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
(analyzing work product protection for materials created by a testifying expert; "Several of the Privilege Log documents are just that. Privilege Log Nos. 275 and 277, authored by Xroads [Valuation firm], and Nos. 315-17, authored by Duff & Phelps [Valuation firm], are draft reports on the fair market value of WASCO, and come within the ambit of Rule 26(b)(4)'s protection. These documents were shared among employees of the testifying expert firms, Taxpayer, VE, outside counsel, and (for the Duff & Phelps reports) with outside tax advisors PricewaterhouseCoopers LLP ('PWC') As noted in the previous Memorandum Order, the Court is persuaded that 'Taxpayer . . . Had common interests with its parent and other affiliated entities' and there was no waiver of protection by virtue of these documents being shared among members of the VE corporate family . . . In particular with regard to Nos. 315-17, the Duff & Phelps reports, the Court finds no waiver of privilege because PWC is not an adversary nor a conduit to an adversary. On the contrary, PWC was regularly consulted as a non-testifying expert.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal DE

Chapter: 49.4

Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 577 (S.D.N.Y. 2013)
(in an opinion by Judge Shira Scheindlin, analyzing experts playing two roles in the same case; "I conclude that the 2010 Amendment to Rule 26 does not alter the considerations applicable to dual-capacity experts in any way pertinent to this dispute. The 2010 Amendment did not change the rules (or policies) applicable to consulting expert discovery: a party seeking discovery of facts known or opinions held by a consulting expert must still demonstrate exceptional need to overcome the federal policy of encouraging parties to seek, and enabling parties to obtain, competent consultation."; "I conclude that the 2010 Amendment alters the analysis of privilege for dual-capacity experts only when 'core' work product -- e.g., attorney theories and impressions -- is involved.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 49.4

Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 576 (S.D.N.Y. 2013)
(in an opinion by Judge Shira Scheindlin, analyzing experts playing two roles in the same case; "Prior to the 2010 Amendment, Rule 26(a)(2)(B)(ii) permitted discovery of 'data or other information' considered by a testifying expert in connection with her opinion, leading many courts to conclude that 'Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.' The 2010 Amendment to Rule 26 abrogates this bright-line approach in favor of the work-product doctrine's original function: protecting the 'orderly prosecution and defense of legal claims[]' by preventing 'unwarranted inquiries into the files and the mental impressions of attorneys. . . . Among other changes -- e.g., designating drafts of expert reports as work-product through Rule 26(b)(4)(B -- the 2010 Amendment: (1) clarifies that 'communications between [a] party's attorney and' a testifying expert are within the scope of the work-product doctrine; and (2) excepts from the work-product doctrine 'facts or data' considered by a testifying expert, rather than 'data or other information[,]' thereby clarifying that attorney theories and impressions are not discoverable." (citations omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 49.5

Case Name: Luminara Worldwide, LLC v. RAZ Imports, Inc., Case No. 15-cv-03028 (SRN/FLN), 2016 U.S. Dist. LEXIS 158183 (D. Minn. Nov. 15, 2016)
(holding that even after the 2010 federal rules amendments, testifying experts who are not obligated to file a report are governed by the pre-2010 waiver rules which therefore require the testifying expert t produce any communications from counsel that the testifying expert "considered"; "On the basis of the advisory committee notes to the 2010 amendments, as well as a particularly scholarly and well-considered opinion of the Eastern District of California analyzing those notes, Magistrate Judge Noel ultimately determined that the 2010 amendments to Rule 26 did not change the law of waiver of privilege existing prior to the amendments, at least as applied to non-reporting expert witnesses."; "As Magistrate Judge Noel noted in the October 5 Order, the waiver of privilege attached to Patton's status as a non-reporting expert extends to any documents and information he considered in connection with his proposed testimony. (October 5 Order at 4.) In this jurisdiction, as well as others, courts have clearly and repeatedly recognized that the term 'considered' is to be interpreted broadly in this context."; "This rule recognizes that part of the purpose of expert discovery is to discover not just the information that the expert used in reaching his conclusions, but also what information he ignored or failed to properly incorporate into his analysis."; In the alternative, Luminara asks the Court to grant it leave to re-designate Patton as a reporting expert pursuant to Rule 26(a)(2)(B). . . . Magistrate Judge Noel carefully considered this same request in his October 5 Order and rejected it, concluding that Luminara was amply advised in both the February 25 and May 18 orders of the duties imposed by designating Patton as a non-reporting expert witness. Such decisions are well within the discretion of the magistrate judge.")

Case Date Jurisidction State Cite Checked
2016-11-15 Federal MN
Comment:

key case


Chapter: 49.5

Case Name: Leprino Foods Co. v. DCI, Inc., Civil Action No. 13BcvB02430BRMBKMT, 2014 U.S. Dist. LEXIS 87822, at *27 (D. Colo. June 27, 2014)
("The court finds that DCI gains no tactical advantage in the litigation by virtue of full disclosure of any of the expert reports which would give rise to the 'unsual' [sic] subject matter waiver sought by Plaintiff and as evidenced by the plaintiff's subpoenas on MSR and SES. There is no selective or misleading purpose in releasing the reports, especially as to the four pre-meeting reports, which this court finds are covered in full by the Confidentiality Agreement's provision protecting 'all communications and materials of whatever kind or nature exchanged between the parties as part of [the settlement] process.'")

Case Date Jurisidction State Cite Checked
2014-06-27 Federal CO

Chapter: 49.5

Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *20-21 (D. Del. Oct. 25, 2013)
(applying relatively new federal rules in protecting communications between testifying experts and the client's lawyer, but not other client representatives; "On this issue the Court agrees with the government. Rule 26(b)(4)(C) only protects 'communications between the party's attorney' and that party's testifying expert (i.e., a Rule 26(a)(2) expert). Communications of 'facts or data . . . that the expert considered in forming the opinions to be expressed' that were provided to the expert by sources other than 'the party's attorney' are not protected by Rule 26(b)(4)(C). Nor, here, has the Taxpayer identified any other source of protection from disclosure of such 'facts or data.'")

Case Date Jurisidction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 49.8

Case Name: Luminara Worldwide, LLC v. RAZ Imports, Inc., Case No. 15-cv-03028 (SRN/FLN), 2016 U.S. Dist. LEXIS 158183 (D. Minn. Nov. 15, 2016)
(holding that even after the 2010 federal rules amendments, testifying experts who are not obligated to file a report are governed by the pre-2010 waiver rules which therefore require the testifying expert t produce any communications from counsel that the testifying expert "considered"; "On the basis of the advisory committee notes to the 2010 amendments, as well as a particularly scholarly and well-considered opinion of the Eastern District of California analyzing those notes, Magistrate Judge Noel ultimately determined that the 2010 amendments to Rule 26 did not change the law of waiver of privilege existing prior to the amendments, at least as applied to non-reporting expert witnesses."; "As Magistrate Judge Noel noted in the October 5 Order, the waiver of privilege attached to Patton's status as a non-reporting expert extends to any documents and information he considered in connection with his proposed testimony. (October 5 Order at 4.) In this jurisdiction, as well as others, courts have clearly and repeatedly recognized that the term 'considered' is to be interpreted broadly in this context."; "This rule recognizes that part of the purpose of expert discovery is to discover not just the information that the expert used in reaching his conclusions, but also what information he ignored or failed to properly incorporate into his analysis."; In the alternative, Luminara asks the Court to grant it leave to re-designate Patton as a reporting expert pursuant to Rule 26(a)(2)(B). . . . Magistrate Judge Noel carefully considered this same request in his October 5 Order and rejected it, concluding that Luminara was amply advised in both the February 25 and May 18 orders of the duties imposed by designating Patton as a non-reporting expert witness. Such decisions are well within the discretion of the magistrate judge.")

Case Date Jurisidction State Cite Checked
2016-11-15 Federal MN
Comment:

key case


Chapter: 49.8

Case Name: In re S3 LTD, No. 99-22531-S, 2000 WL 1239772, at *7 (Bankr. E.D. Va. Aug. 10, 2000)
(where a company in Chapter 11 bankruptcy hired a government contracts expert to assist it in a dispute with one of its major creditors, which it then settled and the bankrupt company later sought to lift a settlement-related protective order to disclose to government authorities what it alleged to be fraudulent billing of the government by the creditor; the creditor sought materials prepared by the expert, but the bankrupt company claimed that the materials were protected by the work product doctrine; discussing the interplay of Rule 26(b)(4)(B) (which allows discovery of a nontestifying expert "upon a showing of exceptional circumstances") and Rule 26(b)(3); explaining that Rule 26(b)(4) must be "narrowly construed in order to protect vigorously opinion work product"; holding that Rule 26(b)(4)(B) does not allow for the discovery of documents, but only permits interrogatories and depositions; finding that the consultant hired by the bankrupt company should also be deemed a non-testifying expert, so that the "substantial need" justifying discovery of nonopinion work product under Rule 26(b)(3) means that the creditor had also shown "exceptional circumstances" under Rule 26(b)(4)(B); "[t]hus, even if some or all of the Vander Schaaf Report [prepared by the consultant/non testifying expert] were not discoverable because of the work-product doctrine, MANCON [the creditor seeking the report] is not restricted from issuing interrogatories to Vander Schaaf or from deposing him in order to discover facts known or opinions held by the expert in conformity with Rule 26(b)(4)(B)"; holding that the portions of the report that are opinion work product would be protected from disclosure, except for the bankrupt company's action in providing the report to the Department of Defense, which waived the work product protection)

Case Date Jurisidction State Cite Checked
2000-08-10 Federal VA

Chapter: 49.10

Case Name: Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1024 (7th Cir. 2012)
("The consultant's work will, by definition, be work product because the party uses the consultant 'in anticipation of litigation.' See Fed. R. Civ. P. 26(b)(4)(D). The district court did not use the rule as independent authority to reject API's claim. Rather, the district court used it as an illustration. Because the rule protects 'facts known or opinions held by an expert,' the rule shows that facts and opinions alike are protected and therefore not separable. See id. (emphases added). API also cites authority for the proposition that once a party relies on the research of a nontestifying expert, it falls out of the protection of the Rule and becomes freely discoverable. True, but this is the same litigation-specific argument that API relies on throughout its brief. Parties need only disclose work product in the particular case they use it. This argument echoes the waiver argument we reject below -- that the government used a portion of the report in a consent decree does not mean that the Rule requires disclosure in every case going forward.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal B 9/13

Chapter: 49.301

Case Name: United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222, 229 (D.D.C. 2012)
("Plaintiff candidly admits that it wants to depose Murray [non-testifying expert] and obtain his test results to impeach Price's [testifying expert] conclusions in his report. Plaintiff asserts that Price relied on Murray's test results without one shred of evidence to support its assertion. Both Murray and Price in their declarations deny any sharing of data of the tested vests.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 49.302

Case Name: In re McDaniel, No. 14-13-00127-CV, 2013 Tex. App. LEXIS 4052, at *6 (Tex. App. Mar. 28, 2013)
(holding that tests conducted on a product deserved work product protection; "A party is entitled to obtain the same information about a consulting expert whose work was reviewed by a testifying expert.")

Case Date Jurisidction State Cite Checked
2013-03-28 State TX B 3/14

Chapter: 49.302

Case Name: United States ex rel. Westrick v. Second Chance Body Armor, Inc., 288 F.R.D. 222, 228 (D.D.C. 2012)
("In the case of collaboration, the non-testifying expert can be deposed to determine whether the work that formed the basis of the testifying expert's opinion was performed in a competent manner and if reliance on such work is common.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 9/13

Chapter: 49.304

Case Name: In re Application of International Mineral Resources B.V. For An Order To Take Discovery Pursuant To 28 U.S.C. § 1782, Civ. A. No. 14-mc-340 (GK), 2015 U.S. Dist. LEXIS 98414 (D.D.C. July 28, 2015)
("The Parties cite conflicting authority as to whether the non-testifying expert privilege is subject to waiver at all.")

Case Date Jurisidction State Cite Checked
2015-07-28 Federal DC

Chapter: 49.304

Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
(analyzing waiver issues in connection with a non-testifying expert; "Nautical claims that by orally disclosing some or any portion of Guy Clifford's Report, the work product protection has been destroyed as to the entire Report. However, courts have held that due to the sensitive nature of work product materials and the policy behind maintaining their secrecy, generally speaking, when work product protection has been waived, it is limited to the information actually disclosed."; "This limitation is particularly adhered to where the disclosure at issue pertains to work product held or created by a nontestifying expert, as in this case. . . . Even where a court finds that a party waived protections afforded to non testifying experts, the waiver may be limited in scope."; "'The undersigned notes that, as observed in Murray v. Southern Route Mar., S.A., No. C12-1854RSL, 2014 U.S. Dist. LEXIS 58852, 2014 WL 1671581, at *1-3 (W.D. Wash. April 28, 2014), a number of courts have questioned whether the non-testifying expert privilege under Rule 26(b)(4)(B), can ever be waived. . . (collecting cases addressing waiver in context of non-testifying expert disclosure).'")

Case Date Jurisidction State Cite Checked
2015-07-15 Federal FL

Chapter: 49.304

Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "Those cases that found waiver of the consulting expert witness privilege base the waiver on the fact that the expert in question has offered an opinion on something more closely related to trial or the ultimate resolution of a case (i.e. a summary judgment brief), that remains outstanding. Dr. Maronick's prior participation at the preliminary injunction phase does not fall into this category. Preliminary injunction matters are not necessarily related to 'trial' -- at least not for expert witness purposes, and, in any event, the preliminary injunction phase has passed.")

Case Date Jurisidction State Cite Checked
2015-03-20 Federal FL

Chapter: 49.304

Case Name: Wreal LLC v. Amazon.com, Inc., Case No. 14-21385-CIV, 2015 U.S. Dist. LEXIS 35082 (S.D. Fla. March 20, 2015)
(explaining that a litigant can use an expert's testimony in a preliminary injunction hearing, which did not render expert testifying at trial for purposes of the federal rules -- thus allowing the expert to return to a non-testifying status for the trial; "Amazon has not demonstrated that the privilege afforded such non-testifying experts by Rule 26(b)(4)(D) has been waived. First, as other courts have found, whether such waiver is even possible appears subject to some debate. . . . Second, even if Dr. Maronick's status as a non-testifying expert was somehow waived by his participation in the preliminary injunction motion/hearing (or counsel's reference to his survey at the March 6, 2015 hearing), that status has likely now been restored.")

Case Date Jurisidction State Cite Checked
2015-03-20 Federal FL

Chapter: 49.304

Case Name: In re Morning Song Bird Food Litig., Lead Case No. 12cv1592 JAH (RBB), 2015 U.S. Dist. LEXIS 11333 (S.D. Cal. Jan. 23, 2015)
(finding a defendant waived work product protection by giving its non-testifying expert's report to the government; "Defendants voluntarily disclosed the contents of the reports by Environ (Dr. DeMott) and Exponent (Dr. Fairbrother) in communications with the authorities, presumably electing to use the analyses and conclusions to their advantage. Indeed, they cited these studies in the current litigation. . . . They cannot limit the use of these items now because their prior use constituted a waiver of any privilege."; "Defendants have waived any work product privilege in the Exponent and Environ materials because they chose to voluntarily disclose them to the opposing side.")

Case Date Jurisidction State Cite Checked
2015-01-23 Federal CA

Chapter: 49.304

Case Name: In re Morning Song Bird Food Litig., Lead Case No. 12cv1592 JAH (RBB), 2015 U.S. Dist. LEXIS 11333 (S.D. Cal. Jan. 23, 2015)
(finding a defendant waived work product protection by giving its non-testifying expert's report to the government; "Rule 26(b)(4)(D) 'creates a safe harbor whereby facts and opinions of nontestifying, consulting experts are shielded from discovery, except upon a showing of exceptional circumstances.'. . . Several policy considerations underlie the rule, including, (1) encouraging counsel to obtain necessary expert advice without fear that the adversary may obtain such information; (2) preventing unfairness that would result from allowing an opposing party to reap the benefits from another party's efforts and expense; (3) limiting any chilling effect on the use of experts as consultants if their testimony could be compelled; and (4) avoiding prejudice to the retaining party if the opposing party were allowed to call at trial an expert who provided an unfavorable opinion to the party who first retained them.")

Case Date Jurisidction State Cite Checked
2015-01-23 Federal CA

Chapter: 49.304

Case Name: L-3 Communications Corp. v. Sparton Corp, Case No. 6:13-cv-1481-Orl-TBS, 2014 U.S. Dist. LEXIS 86426, at *8 (M.D. Fla. June 25, 2014)
(holding that the work product doctrine protected documents prepared by a consulting expert, but that the protection was waived when the documents were provided to an adversary; "Plaintiff has not waived the work-product privilege with respect to any other communications, investigations, tests, or information obtained or prepared by Exelis. If Defendants believe this other information is discoverable, then additional litigation will be required.")

Case Date Jurisidction State Cite Checked
2014-06-25 Federal FL

Chapter: 49.304

Case Name: Murray v. Southern Route Maritime, S.A., No. C12-1854RSL, 2014 U.S. Dist. LEXIS 58852 (W.D. Wash. April 28, 2014)
(finding that a non-testifying expert's report resulted in a waiver; "While there are a number of cases that question whether the non-testifying expert privilege can be waived, very few actually make a finding that waiver is inapplicable. . . . The vast majority of cases find or assume that waiver applies and proceed to make the necessary factual determinations based on the record presented. . . . The Court finds that the majority rule is persuasive. The right to keep the opinions of non-testifying experts secret is based on the same concerns that motivate the work product doctrine: counsel must have a safe space in which to investigate, analyze, and prepare his client's case without fear that the opposing party will be able to exploit his efforts. . . Neither plaintiffs nor the cases on which they rely offer a persuasive reason why the non-testifying expert privilege should be maintained despite a knowing and intelligent disclosure when virtually every other privilege, including the attorney-client privilege and work product protections, are subject to waiver. . . . The Court finds that if the facts known or opinions held by a non-testifying expert are intentionally disclosed or used in a way that is contrary to the purpose of the privilege, waiver may apply."; "Not every disclosure works against that purpose. If, for example, plaintiffs had given a copy of the CETRI report to one of his treating physicians or a third-party with whom it shared an interest and had a reasonable expectation that the report would be kept confidential, the Court would be hard-pressed to find that they had acted adversely to the purposes of the privilege. Such disclosures would not substantially increase the opportunities for potential adversaries to obtain the information or suggest a conscious disregard of the risk that adversaries would obtain the report."; "In the circumstances presented here, however, that conclusion is obvious. Plaintiffs turned the CETRI report over to their opponent in an on-going worker's compensation case."; finding that the disclosure did not cause a subject matter waiver)

Case Date Jurisidction State Cite Checked
2014-04-28 Federal WA

Chapter: 49.304

Case Name: Murray v. Southern Route Maritime, S.A., No. C12-1854RSL, 2014 U.S. Dist. LEXIS 58852 (W.D. Wash. April 28, 2014)
(finding that disclosure of a non-testifying expert's report to an adversary (the employer in a worker's compensation dispute) caused a waiver, but not a subject matter waiver; "Although plaintiffs' disclosure of the CETRI report waived the privilege as to that document, they have preserved the confidentiality of the underlying examination records and any unreported facts or opinions held by the examining experts. Plaintiffs still have an interest in benefitting from some part of their litigation preparation, and this interest is at the core of the work product doctrine and the non-testifying expert privilege. While a party cannot shield the material which it has already disclosed or on which its witnesses rely, where the disclosure is limited, the waiver applies only to the matters disclosed or relied upon.")

Case Date Jurisidction State Cite Checked
2014-04-28 Federal WA

Chapter: 49.304

Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *9 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Estreicher [Consultant, who was a lawyer, but not acting in the legal capacity] was retained after the Class Action was settled and judgment entered. He was not retained in anticipation of this litigation or to prepare for the trial of this action. Additionally, Defendant has already produced his report, which generally waives the protections afforded a non-testifying expert by Rule 26(b)(4)(D).")

Case Date Jurisidction State Cite Checked
2014-02-04 Federal CT B 6/14

Chapter: 49.304

Case Name: Genesco, Inc. v. Visa U.S.A., Inc., 296 F.R.D. 559, 581, 582, 582 n.5, 584, 584-85 (M.D. Tenn. 2014)
(holding that the attorney-client privilege and the work product doctrine protected communications relating to a forensic expert's investigation into a cyberattack in Genesco's computer network; also concluding a non-testifying expert's disclosure did not waive the expert's protection; "Genesco next asserts the attorney client and work product privileges to bar Visa's discovery requests for Sisson's [Genesco's General Counsel] deposition and his records and communications during his investigation of the cyberattack and Visa's assessments and fines. Attorneys' factual investigations 'fall comfortably within the protection of the attorney-client privilege.'. . . This privilege extends to the Stroz firm [outside consultant who assisted inside counsel and outside counsel Kilpatrick Townsend & Stockton in investigating a cyberattack on Genesco's computer system] that assisted counsel in his investigation."; "For most actions, this Court requires a privilege log, but a study of the history of law reflects that most rules eventually give rise to exceptions where the facts warrant. Moreover, Rule 26(b)(4)(D) does not require a privilege log, only information that 'describes the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Rule 26(b)(5)(A)(ii) also does not require a privilege log."; "'Moreover, to disclose the details for a privilege log of documents exchanged between Sisson and Stroz would infringe upon Genesco's counsel and his consultant's mental processes that are entitled to absolute protection in this Circuit. . . . Thus, to require a privilege log for the assertion of these privileges for Genesco's counsel and his agent, the Stroz firm, would itself violate the work product privilege.'"; "These privileges arise from the relationship between Genesco and the Stroz firm for which Genesco's affidavits are appropriate and sufficient to enable the Court to decide whether the privilege attaches."; "This Court and other courts require a privilege log for most cases, but here given the international scope of this controversy and the circumstances of the retention of a consultant computer expert to assist Genesco's counsel in a complex computer investigation, this action fits squarely within Upjohn [Upjohn Co. v. United States, 449 U.S. 383 (1981)]. Given that this controversy involves Genesco's retail establishments through the world, the individual listing of each document to Genesco's counsel for determining privilege seems impracticable and unnecessary to decide this privilege issue in light of Upjohn. The Court, however, will require a privilege log for any document that was prepared by a Genesco employee, but was not addressed directly to Genesco's counsel as such factual circumstances fall outside of Upjohn. Genesco also cannot withhold documents prepared in its ordinary business, as reflected by the Court's ruling that remedial measures that Genesco took in response to Trustwave's report must be produced because the Trustwave [outside forensic investigator of cyber attack] report reflects that those measures were undertaken in the ordinary course of business, not for Genesco's counsel."; "Based upon Precision of New Hampton [Precision of New Hampton. Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847 (N.D. Iowa June 5, 2013)], the Court concludes that there is not any waiver of the attorney client privilege. Assuming a waiver based upon disclosure of the Stroz report, the limitation on the nontestifying expert consultant would still bar the Stroz discovery,as that protection arises under Rule 26(b)(4)(D) that serves different purposes and does not permit of waiver. Precision of New Hampton. Inc., 2013 U.S. Dist. LEXIS 79847, 2013 WL 2444047, at *3 ('where a party enjoys protection under Rule 26(b)(4)(D), the protection is not subject to waiver.').")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal TN B 6/14

Chapter: 49.304

Case Name: Precision of New Hampton, Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847, at *12, *16-17 (N.D. Iowa June 5, 2013)
(analyzing the status of documents created by defendant's engineering expert; ultimately concluding that the non-testifying expert's work product claim was "dubious," but that plaintiff could not overcome any work product protection that did exist; also holding that the defendant did not waive any work product protection opinions to current plaintiff and the defendant's insurance carrier; "Tri Component did not waive the protections of FEDERAL RULE OF CIVIL PROCEDURE Rule 26(b)(4)(D). It appears dubious that the waiver doctrine applies to the protections afforded to facts known or opinions held by non-testifying consulting experts. Even if the protections of Rule 26(b)(4)(D) can be waived, it does not appear that any actions taken by Tri Component make it unfair to insist that the privilege still exists. As in Hooker Chemicals [United States v. Hooker Chem.s & Plastics Corp., 112 F.R.D. 333 (W.D.N.Y. 1986)] -- where the party itself did not make the disclosures that formed the basis of the waiver argument -- Jones and Tri-Component's insurer, rather than Tri Component itself, made the disclosures that Precision [current plaintiff] argues amount to a waiver. These disclosures do not constitute a waiver of the protections of Rule 26(b)(4)(D) because only Tri Component, as holder of the protections, could waive them. Furthermore, even if the disclosures of Jones and Tri Component's insurer did amount to a waiver, the waiver would not necessarily apply broadly to allow further discovery from Jones.")

Case Date Jurisidction State Cite Checked
2013-06-05 Federal IA B 4/14

Chapter: 49.304

Case Name: In re S3 LTD, No. 99-22531-S, 2000 WL 1239772, at *7 (Bankr. E.D. Va. Aug. 10, 2000)
("The work product doctrine is a qualified privilege and is subject to waiver."; finding that a litigant had waived the work product protection by sharing a non-testifying expert's report with the government, including the non-testifying expert's opinion)

Case Date Jurisidction State Cite Checked
2000-08-10 Federal VA

Chapter: 49.703

Case Name: Carrion v. For Issuance of Subpoena under § 28 U.S.C. 0782(a) (In re Republic of Ecuador), 735 F.3d 1179, 1186, 1187 (10th Cir. 2013)
(holding that the testifying experts' materials are governed by the specific testifying expert rule rather than the general work product rule; "Some courts held that drafts of expert reports were discoverable under Rule 26(a)(2)(B)(ii). . . . Other courts held that communications between an expert and a party's attorney -- even communications containing the attorney's mental impression -- were discoverable under Rule 26(a)(2)(B)(ii). . . . These decisions, according to the Advisory Committee, had the effect of raising the cost of litigation and causing attorneys to be overly cautious in their interaction with experts.."; "Thus, in 2010 the Advisory Committee abandoned the 'facts or other information' standard for expert reporting and adopted the 'facts or data' standard found in the current version of the Rules. . . . Through this change, the Advisory Committee 'intended to alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney -- expert communications and draft reports.'"; "Contrary to Chevron's assertion that these revisions were intended to have wide-ranging effects, the revisions appear to alter only the outcome of cases either allowing discovery of draft reports or attorney -- expert communications."; "Other comments make clear that the protections of Rules 26(b)(4)(B) and (C) are the exclusive protections afforded to expert trial-preparation materials. '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.' Fed. R. Civ. P. 26(b)(4) (2010 Comments). If Rules 26(b)(4)(B) were not exclusive, then such a statement would be unlikely."; "Thus, Rule 26(b)(4), especially subdivision (C), restores the core understanding that the work-product doctrine solely protects the inner workings of an attorney's mind.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 49.703

Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *21, *22, *24 (W.D. Va. Apr. 16, 2009)
(finding that a testifying expert had to disclose all documents that he considered, even if the documents were otherwise protected by the opinion work product doctrine; "Whether McGreal was initially retained in a nonlitigation role, he is unquestionably Lloyd's testifying expert now. Therefore, the Rule 45 subpoena was improperly issued to Rimkus. Nonetheless, the court finds that Schwarz is entitled to Rimkus's relevant case file (including documents created or provided past October 1, 2007)."; "[A]ll the information required by Rule 26(a)(2)(B) must be disclosed at the time Lloyd's chose to disclose expert McGreal, including 'the data or other information considered by [McGreal] in forming [his opinions].' Fed. R. Civ. P. 26(a)(2)(B)(ii) (emphasis added). Therefore, the court finds that the time for such fulsome disclosure has already past. Contrary to Lloyd's assertion, the 'data or other in-formation considered' requirement is quite broad, encompassing even attorney opinion work product provided to a testifying expert. In Elm Grove Coal Co. v. Director, Office of Workers' Comp. Programs. the Fourth Circuit squarely held that in light of the 1993 amendments to Rule 26 . . . , 'draft expert reports prepared by counsel and provided to testifying experts, and attorney-expert communications that explain the lawyer's concept of the underlying facts, or his view of the opinions expected from such experts, are not entitled to protection under the work product doctrine.' 480 F.3d 278, 303 (4th Cir. 2007) (emphasis added) (footnote omitted).'"; "Schwarz is entitled to any 'data or other information that was considered' by McGreal in forming his opinions, including attorney expert communications, and information provided both before and after October 1, 2007.")

Case Date Jurisidction State Cite Checked
2009-04-16 Federal VA

Chapter: 49.703

Case Name: Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 301, 303 & n.25 (4th Cir. 2007)
("[I]t is important to the proper cross examination of an expert witness that the adverse party be aware of the facts underlying the expert's opinions, including whether the expert made an independent evaluation of those facts, or whether he instead adopted the opinions of the lawyers that retained him."; "[D]raft expert reports prepared by counsel and provided to testifying experts, and attorney expert communications that explain the lawyer's concept of the underlying facts, or his view of the opinions expected from such experts, are not entitled to protection under the work product doctrine."; "We observe that, in connection with discovery issues such as those presented here, it is important to distinguish between testifying experts, on the one hand, and non testifying or consulting experts, on the other. Any such draft reports or attorney communications made or provided to non testifying or consulting experts should be entitled to protection under the work product doctrinc."; vacating the decision and remanding to the administrative law judge)

Case Date Jurisidction State Cite Checked
2007-01-01 Federal

Chapter: 49.703

Case Name: Trigon Ins. Co. v. United States, 204 F.R.D. 277, 283 & n.8 (E.D. Va. 2001)
(citing the 1993 amendments to Federal Rule 26 in concluding that materials shared with the testifying expert must be produced; holding that because "drafts [of the expert's reports] may be used for cross examination and other purposes, and are not protected by another doctrine of privilege, drafts should be disclosed where, as here, they are not solely the product of the experts own thoughts and work" (footnote omitted); concluding that there was no reason to decide whether experts must retain drafts that they themselves create, but noting that "there are cogent reasons which militate against such a requirement")

Case Date Jurisidction State Cite Checked
2001-01-01 Federal VA

Chapter: 49.703

Case Name: In re S3 LTD, No. 99-22531-S, 2000 WL 1239772, at *7 (Bankr. E.D. Va. Aug. 10, 2000)
(where a company in Chapter 11 bankruptcy hired a government contracts expert to assist it in a dispute with one of its major creditors, which it then settled and the bankrupt company later sought to lift a settlement-related protective order to disclose to government authorities what it alleged to be fraudulent billing of the government by the creditor; the creditor sought materials prepared by the expert, but the bankrupt company claimed that the materials were protected by the work product doctrine; discussing the interplay of Rule 26(b)(4)(B) (which allows discovery of a nontestifying expert "upon a showing of exceptional circumstances") and Rule 26(b)(3); explaining that Rule 26(b)(4) must be "narrowly construed in order to protect vigorously opinion work product"; holding that Rule 26(b)(4)(B) does not allow for the discovery of documents, but only permits interrogatories and depositions; finding that the consultant hired by the bankrupt company should also be deemed a non-testifying expert, so that the "substantial need" justifying discovery of nonopinion work product under Rule 26(b)(3) means that the creditor had also shown "exceptional circumstances" under Rule 26(b)(4)(B); "[t]hus, even if some or all of the Vander Schaaf Report [prepared by the consultant/non testifying expert] were not discoverable because of the work-product doctrine, MANCON [the creditor seeking the report] is not restricted from issuing interrogatories to Vander Schaaf or from deposing him in order to discover facts known or opinions held by the expert in conformity with Rule 26(b)(4)(B)"; holding that the portions of the report that are opinion work product would be protected from disclosure, except for the bankrupt company's action in providing the report to the Department of Defense, which waived the work product protection)

Case Date Jurisidction State Cite Checked
2000-08-10 Federal VA

Chapter: 49.703

Case Name: Lamonds v. General Motors Corp., 180 F.R.D. 302, 304 (W.D. Va. 1998)
("The work product doctrine, as distinguished from the absolute attorney-client privilege, is a qualified protection. . . . Though Rule 26(b)(3) states that courts must protect opinion work product from discovery, its text also subjects the rule to the provisions of Rule 26(b)(4). Fed. R. Civ. P. 26(b)(3), (b)(4). Rules 26(b)(4) and 26 (a)(2)(B), read together, allow an opposing party to discover the basis of a testifying expert's opinion and require that the expert issue a report disclosing all 'information considered by the witness in forming his opinion.' The rules, therefore, create a tension between protection of work product and discovery of information considered by an expert. This tension is perhaps most evident in this case where the issue is the discoverability of work product communicated to a retained expert."; holding that documents prepared by the plaintiff's lawyer and supplied to the plaintiff's testifying expert were discoverable even though they contained opinion work product)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 49.703

Case Name: Lamonds v. General Motors Corp., 180 F.R.D. 302, 305 (W.D. Va. 1998)
("A number of courts and commentators who have considered the effect of the 1993 amendments and advisory note to Rule 26(a)(2)(B) have concluded that where a lawyer gives work product to an expert who considers it in forming opinions which he or she will be testifying to at trial, this information is no longer privileged and must be disclosed. The Advisory Note does not distinguish between fact and opinion work product where that work product has been shared with an expert witness who considers the work product in formulating his opinions." (citations omitted; footnote omitted); holding that documents prepared by the plaintiff's lawyer and supplied to the plaintiff's testifying expert were discoverable even though they contained opinion work product)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 49.706

Case Name: Luminara Worldwide, LLC v. RAZ Imports, Inc., Case No. 15-cv-03028 (SRN/FLN), 2016 U.S. Dist. LEXIS 158183 (D. Minn. Nov. 15, 2016)
(holding that even after the 2010 federal rules amendments, testifying experts who are not obligated to file a report are governed by the pre-2010 waiver rules which therefore require the testifying expert t produce any communications from counsel that the testifying expert "considered"; "On the basis of the advisory committee notes to the 2010 amendments, as well as a particularly scholarly and well-considered opinion of the Eastern District of California analyzing those notes, Magistrate Judge Noel ultimately determined that the 2010 amendments to Rule 26 did not change the law of waiver of privilege existing prior to the amendments, at least as applied to non-reporting expert witnesses."; "As Magistrate Judge Noel noted in the October 5 Order, the waiver of privilege attached to Patton's status as a non-reporting expert extends to any documents and information he considered in connection with his proposed testimony. (October 5 Order at 4.) In this jurisdiction, as well as others, courts have clearly and repeatedly recognized that the term 'considered' is to be interpreted broadly in this context."; "This rule recognizes that part of the purpose of expert discovery is to discover not just the information that the expert used in reaching his conclusions, but also what information he ignored or failed to properly incorporate into his analysis."; In the alternative, Luminara asks the Court to grant it leave to re-designate Patton as a reporting expert pursuant to Rule 26(a)(2)(B). . . . Magistrate Judge Noel carefully considered this same request in his October 5 Order and rejected it, concluding that Luminara was amply advised in both the February 25 and May 18 orders of the duties imposed by designating Patton as a non-reporting expert witness. Such decisions are well within the discretion of the magistrate judge.")

Case Date Jurisidction State Cite Checked
2016-11-15 Federal MN
Comment:

key case


Chapter: 49.706

Case Name: Tessera, Inc. v. UTAC (Taiwan) Corp., Case No. 10-cv-04435-EJD (HRL), 2015 U.S. Dist. LEXIS 118803 (N.D. Cal. Sept. 4, 2015)
("Tessera might possess some photos that must be disclosed. FRCP 26(a)(2)(B)(ii) requires the production of 'facts or data considered' by an expert to form his opinions. An expert 'considered' information that he 'reviewed' even if the expert did not ultimately rely on that information in his final report. . . . If Tessera sent Dr. Bravman any unproduced photos of UTC packages and Dr. Bravman ultimately declined to rely on them in his report, then Dr. Bravman nonetheless considered those photos and they must be produced.").

Case Date Jurisidction State Cite Checked
2015-09-04 Federal CA

Chapter: 49.706

Case Name: Beachfront North Condominium Assoc., Inc. v. Lexington Ins. Co., Civ. No. 14-6706 (RBK/JS), 2015 U.S. Dist. LEXIS 102917 (D.N.J. Aug. 5, 2015)
(analyzing work product issues in a first party insurance context; "The Court adopts the majority 'pro-discovery' position that 'a party must disclose all information provided to its testifying expert for consideration in the expert's report, including information otherwise protected by the attorney-client privilege or the work product [doctrine].'. . . The definition of 'considered' set forth in Synthes Spine [Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460, 462 (E.D.Pa. 2005)] is also adopted. This definition provides that an expert must disclose all information he/she 'generates, reviews, reflects upon, reads and/or uses in connection with the formulation of his [or her] opinions, even if the testifying expert ultimately rejects the information.'")

Case Date Jurisidction State Cite Checked
2015-08-05 Federal NJ

Chapter: 49.706

Case Name: Perez v. El Tequila LLC, Case No. 12-CV-588-JED-PJC, 2015 U.S. Dist. LEXIS 34174 (N.D. Okla. March 19, 2015)
(finding that the work product doctrine protected oral communications between a government lawyer and a third party's employees; also analyzing the government's later retention of witnesses' experts; "Defense counsel contends that once the Casio witnesses were retained as experts in August 2014, it rendered their July 24 communications with Plaintiff's counsel discoverable. Counsel has provided no authority for this position and the Court rejects it. The Defendants are entitled to know what the expert witnesses considered and relied on in forming their opinions. That information was provided in the Rule 26 expert report provided to the defense a month before Speer's deposition.")

Case Date Jurisidction State Cite Checked
2015-03-19 Federal OK

Chapter: 49.706

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
(analyzing the waiver effect of lawyers' communications to testifying experts; "By enlisting Xroads [Valuation firm] and Duff & Phelps [Valuation firm] as expert witnesses in its litigation with the IRS, Taxpayer has placed them 'in a position to serve as a conduit to transmit' either these documents 'or at least [their] conclusions' to the IRS; the reason Taxpayer is submitting documents to these experts is the hope that the experts will agree with their content, incorporate them into an expert report, and thereby provide Taxpayer an opportunity to persuade the IRS to agree with Taxpayer's position. . . . Consequently, the documents submitted to the testifying experts here lose their work-product protection, unless the protection is otherwise preserved by Rule 26(b)(4)(C).")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal DE

Chapter: 49.706

Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 870 (9th Cir. 2014)
("The historical evolution of the rule, its current structure, and the Committee's explanatory notes make clear that the driving purpose of the 2010 amendments was to protect opinion work product -- i.e., attorney mental impressions, conclusions, opinions, or legal theories -- from discovery. . . . The protections for draft reports and attorney-expert communications were targeted at the areas most vulnerable to the disclosure of opinion work product. The Committee thus sought to acknowledge the reality that attorneys often feel that it is extremely useful -- if not necessary -- to confer and strategize with their experts. But there is no indication that the Committee was attempting to do so at the expense of an adversary's ability to understand and respond to a testifying expert's analysis.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 6/14

Chapter: 49.706

Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 870 n.4 (9th Cir. 2014)
("'[W]e note that an ordinary work product protection (i.e., for trial preparation materials prepared by non-attorneys that do not reflect an attorney's mental impressions, conclusions, opinions, or legal theories) would typically be waived where the materials are disclosed to a testifying expert.'")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 6/14

Chapter: 49.706

Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 871 (9th Cir. 2014)
("We conclude that Rule 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials. The 2010 amendments did not fundamentally restructure Rule 26 to do so.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 6/14

Chapter: 49.706

Case Name: Holland v. Nat'l Union Fire Ins. Co., No. 2:12-cv-1983 TLN AC, 2013 U.S. Dist. LEXIS 157161, at *14-15 (E.D. Cal. Oct. 31, 2013)
(analyzing standing issues; explaining that the defendant insurance company provided coverage for losses resulting from plaintiff's injury, and sought discovery from a personal injury lawyer who had represented plaintiff in an earlier action against the hospital and the doctor for medical malpractice following a work injury; further noting that the underlying malpractice case was resolved, after which the insurance company sought discovery from plaintiff's personal injury lawyer and defendants' lawyer; holding that plaintiff had standing to resist the insurance company's discovery of the former but not the latter; "In this case, plaintiff's motion is granted to the extent defendant seeks to discover draft reports or other disclosures and communications for those experts retained for trial, except that Steven Schultz [plaintiff's former lawyer] must disclose (1) facts or data that the attorney provided and that the expert considered in forming the opinions to be expressed; or (2) the assumptions that the attorney provided and that the expert relied on in forming the opinions to be expressed.")

Case Date Jurisidction State Cite Checked
2013-10-31 Federal CA B 5/14

Chapter: 49.706

Case Name: Great-West Life & Annuity In. Co. v. Am. Economy Ins. Co., Case No. 2:11-cv-02082-APG-CWH, 2013 U.S. Dist. LEXIS 135750, at *52-53 (D. Nev. Sept. 23, 2013)
(finding that a litigant had failed to comply with the timing requirement of a protective order relating to inadvertent disclosures; finding that the parties could have entered into a different kind of protective order; "Outside of the rejected request to apply the claw back principles of Fed. R. Evid. 502 to the Rule 26(a)(2)(B) disclosures, the only other argument appears to be that Mr. Kezer [testifying expert] did not review or consider the documents at issue. The Court is not persuaded by this argument. There is no question that Mr. Kezer received the documents. Now, after testifying under oath at his deposition that he 'looked at the documents that were provided to me . . . went through all of them, and [] focused in on portions of them and not on some of the others,' Mr. Kezer has submitted a declaration stating otherwise. His declaration states that he 'never reviewed' the Kezer documents. The Court is not inclined to permit an expert who testifies under oath during his deposition that he looked at the documents provided to him to file a post hoc declaration that he did not see a specified set of documents -- a set of documents that happens to coincide with a contested waiver claim.")

Case Date Jurisidction State Cite Checked
2013-09-23 Federal NV B 4/14

Chapter: 49.706

Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 574 (S.D.N.Y. 2013)
(in an opinion by Judge Shira Scheindlin, analyzing experts playing two roles in the same case; "In light of this framework, furnishing work-product of a factual nature to a testifying expert constitutes implied waiver of work-product protection to the extent that the expert considers the facts or data disclosed in forming her opinion. However, draft reports and disclosures continue to be protected work-product." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 49.706

Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 574 (S.D.N.Y. 2013)
(in an opinion by Judge Shira Scheindlin, analyzing experts playing two roles in the same case; "It is irrelevant whether the expert ultimately relies upon the facts or data in forming her expert opinion; instead, the test is whether the expert 'considered' the materials. Further, because 'a testifying expert [must] disclose all materials that he considered in reaching his opinion, . . . [a] party seeking to compel the production of [] documents should not have to rely on the [resisting party's] representation that the documents were not considered by the expert in forming his opinion.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 49.706

Case Name: Yeda Research & Dev. Co. v. Abbott GMBH & Co. KG, 292 F.R.D. 97, 109, 104 (D.D.C. 2013)
(in a patent case, ordering a testifying expert to produce his earlier work created when he was a non-testifying expert; holding that after federal rules changes, a testifying expert can withhold only those documents prepared "uniquely" in his or her non-testifying roles; "[T]he 2010 amendment to Rule 26(a)(2)(B) was accompanied by several other changes to the expert discovery rules governing privilege. The 2010 amendment was, in essence, an effort to reign in courts that had held that the disclosure requirement of Rule 26(a)(2)(B) trumped all claims of privilege.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal DC B 4/14

Chapter: 49.706

Case Name: Carrion v. For Issuance of Subpoena under § 28 U.S.C. 0782(a) (In re Republic of Ecuador), 735 F.3d 1179, 1186, 1187 (10th Cir. 2013)
(holding that the testifying experts' materials are governed by the specific testifying expert rule rather than the general work product rule; "Some courts held that drafts of expert reports were discoverable under Rule 26(a)(2)(B)(ii). . . . Other courts held that communications between an expert and a party's attorney -- even communications containing the attorney's mental impression -- were discoverable under Rule 26(a)(2)(B)(ii). . . . These decisions, according to the Advisory Committee, had the effect of raising the cost of litigation and causing attorneys to be overly cautious in their interaction with experts.."; "Thus, in 2010 the Advisory Committee abandoned the 'facts or other information' standard for expert reporting and adopted the 'facts or data' standard found in the current version of the Rules. . . . Through this change, the Advisory Committee 'intended to alter the outcome in cases that have relied on the 1993 formulation in requiring disclosure of all attorney -- expert communications and draft reports.'"; "Contrary to Chevron's assertion that these revisions were intended to have wide-ranging effects, the revisions appear to alter only the outcome of cases either allowing discovery of draft reports or attorney -- expert communications."; "Other comments make clear that the protections of Rules 26(b)(4)(B) and (C) are the exclusive protections afforded to expert trial-preparation materials. '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.' Fed. R. Civ. P. 26(b)(4) (2010 Comments). If Rules 26(b)(4)(B) were not exclusive, then such a statement would be unlikely."; "Thus, Rule 26(b)(4), especially subdivision (C), restores the core understanding that the work-product doctrine solely protects the inner workings of an attorney's mind.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 49.706

Case Name: Carrion v. For Issuance of Subpoena Under 28 U.S.C. § 1782(a) (In re Republic of Eduador), 735 F.3d 1179, 1187 (10th Cir. 2013)
(analyzing the relatively new federal work product rule, and finding that work product protection was limited to the terms of the the rule and did not include documents provided to a testifying expert; "Rule 26(b)(4), especially subdivision (C), restores the core understanding that the work-product doctrine solely protects the inner workings of an attorney's mind. Though Chevron [intervenor-appellant] argues that 'facts or data' is to be construed narrowly to limit discovery to the barebones factual information underlying an expert's opinion, . . . the comments reinforce the strong preference for broad discovery of expert materials: '[T]he intention is that "facts or data" be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients.' Fed. R. Civ. P. 26(a)(2)(B) (2010 Comments). This indifference as to the source of material refutes Chevron's contention that documents provided to an expert by a party are protected under Rule 26(b)(3). And materials containing 'factual ingredients' include far more than materials made up solely of 'facts or data.'")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 5/14

Chapter: 49.706

Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1194, 1195 (11th Cir. 2013)
(explaining materials created by experts are not covered by the work product rule, but instead are covered by the special expert rule; "[T]he 2010 Amendments did two things. First, as outlined above, the drafters added Rules 26(b)(4)(B) and (C) to protect draft expert reports and attorney-expert communications as work product. Second, the drafters changed the language of Rule 26(a)(2)(B) from 'data or other information' to 'facts or data.' This change rejects the outcome reached by cases that relied on the old 'other information' language in Rule 26(a)(2)(B) to compel the production of draft expert reports and communications between attorneys and experts. Rule 26(a)(2)(B) was changed so that it would not conflict with new Rules 26(b)(4)(B) and (C), which now expressly exempt draft reports and attorney-expert communications from discovery."; "To the extent any attorney core opinion work-product is embedded in the 1,200 documents at issue here, Chevron and Dr. Hinchee may appropriately redact such portions -- subject to providing a privilege log under Rule 26(b)(5) and submitting the materials for in camera review if requested by the Republic and directed by the district court. Any redaction beyond attorney core opinion work-product is not allowed.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 5/14

Chapter: 49.707

Case Name: Barbierri v. Pitney Bowes, Inc., FSTCV126014221S, 2014 Conn. Super. LEXIS 2627 (Conn. Sup. Ct. Oct. 17, 2014)
(explaining that Connecticut case law was mixed on the waiver implications of disclosing work product to a testifying expert; "The above-quoted language of Practice Book §13-4 is similar to Rule 26(a)(2) of the Federal Rules of Civil Procedure. It is therefore appropriate to look to federal law for guidance. But the opinions of District Courts cited by both parties show a split of authority on the issue of discoverability of materials provided to or generated by an expert as a basis of the expert's opinion."; "Allowing discovery of information provided to a testifying expert, even if that information has been obtained by counsel in the course of trial preparation and would otherwise be protected as attorney work product, is grounded in fundamental fairness and represents the majority position of authority on the subject as expressed by the Sixth Circuit Court of Appeals in Regional Airport Authority v. LFG, LLC, [460 F.3d 697, 715 (6 Cir. 2006)] supra.")

Case Date Jurisidction State Cite Checked
2014-10-17 State CT

Chapter: 49.707

Case Name: In re McDaniel, No. 14-13-00127-CV, 2013 Tex. App. LEXIS 4052, at *6 (Tex. App. Mar. 28, 2013)
(holding that tests conducted on a product deserved work product protection; "A party is entitled to discovery of all documents, physical models, reports, compilations of data, or other material provided to, reviewed by, or prepared by or for a retained testifying expert. Tex. R. Civ. P. 192.3(e)(6).")

Case Date Jurisidction State Cite Checked
2013-03-28 State TX B 3/14

Chapter: 49.707

Case Name: Hodges v. Norfolk S. Ry. Co., 56 Va. Cir. 348, 350 (Va. Cir. Ct. 2001)
("The questioning of the expert witness concerning what that expert discussed with Plaintiff's counsel prior to the deposition would provide an unfair advantage to Defendant. The answer to such a question 'would reveal [Plaintiff's] counsel's trial tactics and thoughts by way of showing [Defendant] exactly what the [Plaintiff] feels is and is not important to his case.' Shanholtzer v. Dean, 51 Va. Cir. 493 (2000). It is permissible for counsel for Defendant to ask the expert witness what if any information he obtained from counsel for the Plaintiff that affected his expert opinion. If the information divulged by the expert is information or documents already in the possession of counsel for Defendant, then the inquiry is concluded. To allow any further questioning would invade Plaintiff's counsel's legal strategy, which parallels in substance his work product. 'Discovery was hardly intended to enable a learned profession to perform its function on wits borrowed from the adversary.' Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385, 34 Ohio Op. 395 (Justice Jackson, concurring) (1947).")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA B 3/16

Chapter: 49.707

Case Name: Wilson v. Rogers, 53 Va. Cir. 280, 281 (Va. Cir. Ct. 2000)
("In summary, I am persuaded that Lamonds, [Lamonds v. Gen. Motors Corp., 180 F.R.D. 302 (W.D. Va. 1998)] represents the more modern application of discovery practice and to the extent that the materials sought relate to the preparation of expert testimony for trial they should be produced. Obviously, I do not believe that either of the two Virginia cases, Rakes [Rakes v. Fulcher, 210 Va. 542 (1970)] or Edwards, [Commonwealth v. Edwards, 235 Va. 499 (1988)] preclude this result and are factually in opposite to our case. By disclosing material to an expert to assist him in preparing expert opinion for trial, counsel opens the discovery door. On the other hand, asking an expert to assist counsel in preparation for cross-examination of another expert moves into the area of legal theories which are protected by the rule.")

Case Date Jurisidction State Cite Checked
2000-01-01 State VA B 3/16

Chapter: 49.707

Case Name: Wilson v. Rogers, 53 Va. Cir. 280, 282 (Va. Cir. Ct. 2000)
(relying upon Lamonds v. General Motors Corp., 180 F.R.D. 302 (W.D. Va. 1998), as representing "the more modern application of discovery practice," and holding that "to the extent that the materials sought relate to the preparation of expert testimony for trial they should be produced"; nevertheless holding that a letter from a testifying expert to counsel for the defendant were protected from disclosure because the letter and its attachments "suggest possible theories of defense as opposed to the opinion rendered by the expert . . . . By disclosing material to an expert to assist him in preparing expert opinion for trial, counsel opens the discovery door. On the other hand, asking an expert to assist counsel in preparation for cross-examination of another expert moves into the area of legal theories which are protected by the rule."; ordering production of correspondence between the defendant's counsel and testifying expert that the testifying expert "would use . . . in preparation of his opinion")

Case Date Jurisidction State Cite Checked
2000-01-01 State VA

Chapter: 49.707

Case Name: Lamonds v. General Motors Corp., 180 F.R.D. 302, 304 (W.D. Va. 1998)
("The work product doctrine, as distinguished from the absolute attorney-client privilege, is a qualified protection."; holding that documents prepared by the plaintiff's lawyer and supplied to the plaintiff's testifying expert were discoverable even though they contained opinion work product)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 49.707

Case Name: Moyers v. Steinmetz, 37 Va. Cir. 25-26, 29 (Va. Cir. Ct. 1995)
(ordering production of a lawyer's letter to an expert witness after redaction of the lawyer's mental impressions, opinions and legal theories; noting that no Virginia appellate court had ruled on the issue of whether making a privileged document available to an expert witness waives the privilege)

Case Date Jurisidction State Cite Checked
1995-01-01 State VA B 3/16