Morris Manning & Martin, LLP

Discovery of Correspondence Between Counsel and Expert Witnesses

Many cases involving insurance require expert testimony. Counsel and expert witnesses communicate often and sometimes communicate in writing. Opposing counsel have begun to seek discovery of those communications, and the courts have ruled inconsistently.

In the well-known case of Hickman v. Taylor, the Supreme Court held that certain materials obtained or prepared by counsel with an eye towards litigation were usually immune from discovery. This protection has, in some cases, been extended to opinion work product of non-attorneys. The basis for the inclusion of non-attorney work product, such as that generated by an expert witness, is the recognition that attorneys must often rely on the assistance of investigators and other agents.

The Third, Fourth and Eighth Circuits have consistently applied the work product privilege and prevented discovery of communications between an attorney and a testifying expert. The Third Circuit has found that an in camera review of the controversial documents, while burdensome, is necessary to ensure that the work product privilege is upheld. Conversely, federal courts in California and New Jersey have held that the necessity to determine whether the opinions presented by an expert are truly those of the expert, as opposed to having been crafted by counsel, allows opposing counsel to discover correspondence between counsel and the expert.

In Georgia, correspondence from an attorney to an expert is protected from disclosure to the extent that the correspondence contains the opinion work product of the attorney. In accordance with the Third Circuit, the Georgia Supreme Court has held that items which are not work product gain no special protected status merely because they are sent to an expert, but conversely, attorney work product does not lose its special status merely because it is transmitted to an expert. The Georgia Court noted that the protection accorded to attorney work product must be balanced with the rule allowing free discovery of the facts known and opinions held by an expert. Conversely, correspondence between an attorney and a non-testifying expert is not discoverable unless there is a showing of exceptional circumstance. One such circumstance is where the non-testifying expert provides information relied upon by a testifying expert.

Discoverability frequently hinges upon whether a document was created "in anticipation of litigation," a test which is particularly meaningful in the insurance industry. In the early stages of claims investigation, management is not concerned primarily with the contingency of litigation, but with deciding whether to resist the claim, to reimburse the insured and seek subrogation of the insured’s claim against the third party, or to reimburse the insured and abandon any claim for reimbursement. At some point, however, an insurance company’s activity shifts from mere claims evaluation to a strong anticipation of litigation. At this point, the probability of litigating the claim is substantial and imminent.

A more liberal Missouri court has held that the anticipation of the filing of a claim is undeniable once an accident has occurred and a person is injured or property is damaged; thus, documents prepared at that time are clearly prepared "in anticipation of litigation." If a report is found to have been made in the ordinary course of business, rather than in anticipation of litigation, then the instructions to the expert are discoverable.

Finally, evidence of a special relationship between an expert witness and legal counsel is relevant to demonstrate the possible bias of an expert. This evidence, which may be in the form of correspondence, might be discoverable in some manner.