Work Product Protection for Expert Witness’ work – court held that allowing opponent to see Expert’s Drafts to Evaluate Counsel’s Involvement in the Expert’s Report, Frustrates Foundation of Revisions to F.R.Civ.P. 26

On August 25, 2014, In U.S. Commodity Futures Trading Commission v. Newell, Case No. 12 C 6763, 2014 U.S. Dist. LEXIS 117734, at *9 (N.D. Ill. Aug. 25, 2014) plaintiff moved to compel defendants’ expert drafts report based on the argument that they could not benefit from work product protection of those drafts because defendant counsel had cooperated in export’s report.

The decision of the Illinois federal court makes so much sense that I guessed the result of plaintiff’s objection before reading the rest of the opinion.

The court denied the motion to compel in relation to the expert’s draft.  The court reasoned that the 2010 amendment to Rule 26 “expressly extended that protection to drafts of expert reports and communications between a party’s attorney and an expert witness.”

Fed. R. Civ. P. 26(b)(4)(B) and (C) provide:

(B) Trial — Preparation Protection for Draft Reports of Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial — Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. 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, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

The denial of the motion is based on the reasoning that allowing the opponent to explore the counsel’s participation in the drafting “would necessarily require production of all of the drafts of the report for comparison, as well as production of all, or virtually all, communications between expert and counsel. The drafters intended Rule 26(b)(4)(B) and (C) to protect against that discovery.”

Full opinion available here

For more information contact Nathan M. Crystal.