Many expert witnesses have been told and believe that the recent amendments to Rule 26(b)(4)(B) provide complete protection to their work product.
Attorney Angela Zambrano from the firm of Weil Gotshal pointed out some of the limits of the expert’s draft work product protection.
- Courts appear to be allowing liberal discovery into the work performed by a testifying expert and may continue to narrowly construe Rule 26(b)(4)(B)’s protection of drafts, for example:
- Notes, task lists, outlines, presentations, and memoranda taken by experts are not draft reports and are discoverable to the extent they are not protected by work product privilege
- Dongguk University v. Yale University, No. 3:08–CV–00441 (TLM), 2011 WL 1935865, at *1 (D. Conn. May 10, 2011) (holding that an expert’s written notes are neither drafts of an expert report or communications between the party’s attorney and the expert witness). See also In re Application of the Republic of Ecuador, 280 F.R.D. 506 (N.D. Cal. 2012).
- Documents prepared by assistants that are subsequently used by the expert are also not draft reports and are discoverable
- D.G. ex rel. G. v. Henry, No. 08–CV–74–GKF–FHM, 2011 WL 1344200, at *2 (N.D. Okla. April 8, 2011) (finding that case summaries prepared by expert’s assistants falls under scope of “facts or data” considered and are not drafts).
- Notes, task lists, outlines, presentations, and memoranda taken by experts are not draft reports and are discoverable to the extent they are not protected by work product privilege
Conclusion
Expert Witnesses need to be very careful if and when they assume that Rule 26(b)(4)(B) will fully protect all aspects of their draft work product protection.
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