Attorney-Client Privilege/Work Product — Experts

The Sixth Circuit has largely ended the debate as to whether any communications between counsel and expert are protected from discovery. In Regional Airport Auth. v. LFG, LLC, 460 F.3d 697, 717 (6th Cir. 2006), it ruled that: ‛Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.“ Since the line of authority holding to the contrary traces back to the decision of a District Court in the Sixth Circuit (Haworth v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995)), the primary hope for protecting these conversations will lie in the Advisory Committee, which is considering this issue next week. See the post dated January 2, 2007, below. However, for those valiant souls interested in continuting to fight on, see Steven Bennett's article in the December 11, 2006 National Law Journal (page 12), arguing for a distinction between matters "considered" by the expert in connection with his or her opinion (within the meaning of Rule 26(a)(2)(B)) and conversations with counsel which, albeit on the same subject matter, are solely for consulting purposes. I have difficulty with this distinction under the predominant jurisprudence, but I applaud the effort.

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