Commercial Litigation and Arbitration

Experts – 2010 Amendments – No Work Product Protection for Communications between Testifying and Consulting Experts, Among Consulting Experts, or Between Counsel and Consulting Experts

In re Application of Republic of Ecuador, 2012 U.S. Dist. LEXIS 32135 (N.D. Cal. Mar. 9, 2012) (magistrate judge's decision):

Respondents label certain third party consultants (e.g., Golder Associates, NewFields, CH2M Hill, ENTRIX, Quantum Informe, GSI Environmental, Inc., Doug Reagan & Associates) as Chevron's "agents," seeking protection as to their communications with Chevron attorneys, with Kelsh [a testifying expert within 26(a)(2)(B)] and his assistants, and with one another under Rule 26(b)(3)(A). ***

Work product extends specifically to communications between experts who must produce a comprehensive expert report under Rule 26(a)(2)(B) and a party's attorney. Fed. R. Civ. P. 26(b)(4)(C). The Advisory Committee Notes foreclose the notion that consulting experts are afforded protection as "agents" of a party or that party's attorney. Fed. R. Civ. P. 26(b)(4)(C) (2010 Advisory Committee Notes) ("The rule does not itself protect communications between counsel and other expert witnesses, such as those for whom disclosure is required under Rule 26(a)(2)(C)"). Nor does protection exist for communications between an expert witness and a consulting expert. See Chevron Corp. v. Barnthouse, No. 10-mc-00053 SSB (KLL), at *2-3 (S.D. Ohio Dec. 8, 2010) (finding no work product for communications between testifying expert and party's consulting expert). In sum, communications between Chevron's attorneys and consulting experts; between Kelsh/Exponent and consulting experts; or between various consulting experts cannot be cloaked as communications between "Chevron's litigation team members" and other Chevron "agents" to fit within the confines of Rule 26(b)(3).

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