Commercial Litigation and Arbitration

Attorney-Client Privilege/Work Product — Experts — What Is ‛Considered?“

Under Fed. R. Civ. P. 26(a)(2)(B), an expert must include in his or her report not only ‛a complete statement of all opinions“ but also ‛the data or other information considered by the witness in forming the opinions.“ The critical word is ‛considered.“ As noted in the posting of January 8, 2007, 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.“ But that still leaves some ambiguity as to the extent of what has been ‛considered“ and thus must be disclosed, as illustrated by the recent decision in Euclid Chemical Co. v. Vector Corrosion Techs., Inc., 2007 U.S. Dist. LEXIS 38720 (N.D. Ohio. May 29, 2007).

First, there is the issue of history. The expert in Euclid testified as follows at his deposition:

Q. Did you yourself do a list of all the things that you used in the drafting of your report and, therefore, the adoption of Bushman's report?

A. My list would be much more extensive over the years. I mean, I have acquired knowledge from dozens of sources, handbooks, papers.

Q. Your own personal experiences?

A. My own personal library and professional experiences, yes.

Q. All right. So is it appropriate for me to say that the information used by you in the drafting of your report, and, therefore, within the adoption of Mr. Bushman's report, is not adequately reflected under schedule B?

A. There are certainly, within my knowledge and my professional experience, there's more than is down on schedule B, yes. But, I mean, that's within my own personal knowledge. We'd have to go through each of the issues, but it may well be, and from looking at the list probably true, that I could come to all the conclusions that I did and all the conclusions that Bushman did with only the information on schedule B, yes.

Q. But for me to understand the basis for those conclusions, where you derive your conclusion from, because I'm not you, I would have to know all of those things; would you agree with me?***

A. Well, I have 40 years of professional experience and all of that professional experience goes into my knowledge and my assessment of what we're talking about here.

Q. Your experience and your professional work, would you agree with me, too?

A. Yes, yeah.

Q. And that all goes into the drafting of the report and your adoption of Bushman's report? ***

A. Yes, yes.

All of which is to say that any expert has ‛considered“ innumerable items over the course of the expert’s career that pertain to the subject matter of the expert’s testimony. Does this mean that the expert’s report in Euclid was inadequate for not including everything he had read on the subject matter of his testimony over the past 40 years? No. Magistrate Judge William Baughman, Jr., quite sensibly writes:

As for Bennett's [the expert’s] general remarks on deposition about his expertise, these must ... be placed in perspective. An analogy to which the Court (and hopefully counsel) can relate involves an attorney opinion to a client about personal jurisdiction over a claim. The knowledge and expertise for such an opinion will look for its foundation to the attorney's law school training and his work on past cases after law school graduation. In the Rule 26(a)(2)(B) sense, however, this does not mean that the attorney considered his casebook, class notes, or course outline from his civil procedure course; a bench memorandum on personal jurisdiction prepared for a judge during a clerkship; or briefs filed in other cases defending or opposing jurisdiction. Only if he read and reviewed such archival documents in forming his current opinion are they "considered."

Held, only the documents, including past work product, reviewed during the course of the present engagement are discoverable.

Second, there are burden of proof issues a the concept of ‛considered.“ Euclid reiterates that an expert’s testimony that he or she did not consider a document or data relating to the subject matter of the testimony and reviewed in the course of the expert’s engagement ‛carries no weight.“ Testimony that the expert did not in fact read the material, however, is another matter: ‛His testimony that he did not receive, read, or review the same during the relevant time period will receive deference absent evidence to the contrary. For example, at issue here are attorney opinions that Bennett received at some point regarding the validity of his patents. His protestations that he did not consider these whatsoever in forming his opinions in this case cannot defeat their disclosure. If, however, he maintains that he unequivocally did not receive, read, or review those opinions in the relevant time period, then the attorney-client privilege might not be waived.“ Equivocations, though, will not do: ‛All ambiguities and uncertainties must be resolved in favor of discovery.“

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