Caruso v Coleman Co. 94 CV 2779 (E.D.Pa 1994)
We have cautioned before that material furnished to an expert is discoverable. Often attorneys furnish reports, notes and summaries prepared by their office to their testifying expert and then remove them back to their own files before the expert is deposed. The expert is told not to rely on them in forming his opinion (but why were they furnished then?).
At deposition, when asked, the expert will say that he has seen some other documents but that he did not rely on them and they are not in his possession. The attorney taking the deposition will ask that they be produced but the attorney by whom the expert was retained will refuse stating "work product."
The Testifying Expert, a newsletter published by LRP Publications reported in their March 1995 issue that the U. S. District Court for the Eastern District of Pennsylvania found that Federal Rule 26(a)(2) of the amended Federal Rules of Civil Procedure specifically gave counsel the right to any material "considered" by the expert in forming his opinions. The court ruled that this requirement extended to drafts of reports and notes relied upon by the expert in preparing his final report.
In this product liability case, the plaintiffs obtained reports from four experts which they furnished to the defendant's attorney. Defendant served plaintiff with a Request for Production of all drafts of these reports and notes of the experts. Plaintiff refused citing work product protection and defendant had shown no "particularized need."
The court, in granting a motion requiring disclosure, rejected these arguments stating "I recognize that prior to the adoption of the amended Rules of Civil Procedure, this court resisted requiring disclosure of notes of a party's expert absent a showing of a particular need.' . . . However, given the obligation under the amended Rule 26(a)(2), I find that no particularized need is required."
Attorneys and experts should be aware of the possibility that materials will have to be disclosed which previously were not required to be disclosed.
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