Case at a Glance
Plaintiff may not compel production of opinion work product that defense counsel furnished to a defense expert witness on the speculative showing that the material might have influenced the expert’s opinion.
Summary of Decision
Prior to plaintiff’s deposition of defendant’s expert witness, defense counsel furnished the witness with 42 documents. Plaintiff requested the expert to bring his file to the deposition. During the deposition, plaintiff discovered that defendant’s counsel had removed the 42 documents of the basis that they were protected by the work product doctrine. Plaintiff filed a motion to compel production of the documents. After reviewing the documents in camera. A magistrate ordered them produced. Defendant moved to have the magistrate’s order reviewed, and the district court reversed.
F.R.C.P. 26(b) (3) provides that a party may obtain documents prepared in anticipation of litigation only upon a shown of substantial equivalent elsewhere without undue hardship. Even if such a showing is made, the rule admonishes the court to "protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney." The court noted that the rule establishes two categories of work product: factual work product (facts gathered in anticipation of litigation that my only be discovered by a showing of need and unavailability elsewhere0 and opinion work product (material revealing an attorney’s mental impressions, conclusions, opinions or legal theories, that may not be obtained even with such a showing). In Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677 (1981), the Supreme Court expressly refused to decide whether the protection of opinion work product is absolute. It stated, however, that if a balancing test were to be applied to the discovery of opinion work product, the showing of unavailability and necessity needed to overcome the protection would be "far stronger" than that required to overcome the protection afforded factual product.
In Hamel, plaintiff argued that the material in question was needed to impeach defendant’s expert, i.e., to suggest that the expert developed his opinions from or was influenced in his opinions by the statements of defendant counsel. Thus, the district court concluded that the documents in question were the attorney’s opinion work product and, at the lest, something "far stronger" than a mere showing of need and availability elsewhere would be necessary to obtain them.
The district court then found that although plaintiff’s position was reinforced by F.R.C.P. 26(b) (4) (I) (discovery of the grounds for expert’s opinion), little more than a speculative need for the documents had been demonstrated by plaintiff’s counsel, which was not sufficient to override the strong policy against disclosure of opinion work product. The district court observed that all 42 documents had been requested, and that plaintiff had failed to point to a particular document which might be valuable in impeachment. In addition, the court’s in camera inspection of the documents revealed no attempt by defendant’s counsel to co-opt the expert’s independence of judgment.
Finally, the district court observed that there had been no showing that the documents had been used to refresh the expert’s memory or to prepare the witness for examination, which might have justified disclosure. See, e.g., James Julian, Inc. v. Raytheon Co., 93 F.R.D. 348 (D.D.C. 1980) (use of work product to refresh a witness’ memory or to prepare a witness for examination waives work product protection).
Litigation Tips
The possibility of obtaining such materials is to some degree related to the amount of specificity the discovering party can furnish. For example, in Hamel, the district court acknowledged that other district court cases supported plaintiff’s argument. See e.g., Boring v. Keller, 97 F.R.D. 611 (D.N.J. 1989) (documents that indicated attorney wrote every word of medical expert’s report were discoverable) Those cases, however were distinguished as being specific requests by counsel for no more than a document or two.
To overcome the problem presented in Hamel, counsel might consider obtaining information regarding the grounds for the expert’s opinion through interrogatories and by directly asking the expert at deposition what documents were furnished and the extent of his or her reliance upon those identified. Also a court or magistrate’s in camera inspection of a few specifically identified documents is likely to involve closer scrutiny than an examination of an entire file.
On the other hand, cases such as Boring and Occulto indicate that not all courts will be so reluctant to compel the production of work product. In that context, counsel hiring expert witnesses might reconsider the advisability of furnishing them with documents not needed to form an expert opinion in the case.
*In Hamel, the court also stated that if plaintiff’s contention was that the work product protection was waived by the very transmission of documents to an expert, it had to be rejected under Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir. 1984) (Rule 26[b][3] protection is not limited by Rule 26[b][4][A][I]; thus, showing attorney’s memoranda to expert witnesses did not waive work product protection). See also United States v. American Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980) (mere showing of voluntary disclosure to third person insufficient to find waiver of work product protection).
Published with the permission of Shepard’s. McGraw Hill. This article appeared in the May-June 1990 issue of the Federal Litigator.
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