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Eleventh Circuit Clarifies Fed. R. Civ. P. 26 Protection Relating to Expert Witnesses

01.07.2014

A recent opinion issued by the United States Court of Appeals for the Eleventh Circuit requires litigation counsel to consider and monitor carefully the forms of work product generated by expert witnesses to prevent disclosure during discovery.  In Republic of Ecuador v. Hinchee, No. 12-16216, the court affirmed a district court’s order compelling an expert witness who testified on behalf of Chevron in a related proceeding to produce (1) personal notes generated for his own use, and (2) email communications with a group of non-attorneys consisting primarily of other experts hired by Chevron and at least one Chevron employee.

 Chevron argued that the notes and email communications were protected as “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).”  See Fed. R. Civ. P. 26(b)(3)(A).  The court, however, held that “the word ‘expert’ is noticeably absent” and refused to accord protection under that subsection. The Court bolstered its conclusion that expert materials are not protected under Rule 26(b)(3)(A) with an analysis of the 2010 Amendments to Rule 26(b)(4), which was added specifically to provide Rule 26 protection only for drafts of expert reports or disclosures, and not all materials generated by experts.     

 Chevron further argued that the expert was not required to produce the documents because the 2010 Amendments to Rule 26(a)(2)(B) narrowed the expert disclosure requirements from having to disclose “the data or other information” considered by the witness to disclosing “facts or data” considered by the expert. Chevron concluded that the notes and emails were protected because experts no longer are required to disclose “other information.”  The Court concluded that the change did not reflect any intent by the drafters to protect the expert’s notes or communications with non-attorneys.

Ultimately, the court held that experts are required to produce “all materials considered by the testifying expert, except the core opinion work-product of attorneys.” 

The Eleventh Circuit’s opinion in Republic of Ecuador highlights the need for clients to work closely with outside counsel to devise methods to prevent discovery of work product generated by expert witnesses for litigation. 

 For more information about this ruling and how it could affect your business, please contact authors Lew Hassett or Brian Levy.