Commercial Litigation and Arbitration

Designating as a Witness a Hybrid Non-Reporting Expert Who Has Percipient Knowledge of Facts Waives All Privilege and Work Product Protection for Communications between That Witness and Counsel

PacifiCorp v. Nw. Pipeline GP, 2012 U.S. Dist. LEXIS 98313 (D. Or. July 16, 2012):

PacifiCorp seeks discovery of at least 76 communications authored by, received by, or copied to GTN non-retained experts on topics about which they intend to testify, many of which involved GTN's in-house and outside counsel. GTN objects that these communications are protected by the attorney-client privilege and that the non-retained experts did not consider any of the requested communications in reaching their expert opinions.

Prior to 2010, Rule 26 addressed only a single category of expert witnesses, those "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony," and required them to provide a written report containing the "data or other information" they considered in forming their opinions. United States v. Sierra Pac. Indus., No. CIV S-09-2445 KJM EFB, 2011 WL 2119078, at *2 (E.D. Cal. May 26, 2011). The Rule did not impose any disclosure requirements on other types of expert witnesses, such as employees whose duties did not regularly involve giving expert testimony. Id. In 2010, Rule 26 was amended, modifying the disclosure requirements for that original category of expert witnesses (now called reporting witnesses) and establishing different disclosure requirements for the category of non-reporting experts. As the court in U.S. v. Sierra Pacific Industries explains:

Reporting experts (i.e., experts who are retained, specially employed, or whose duties as a party employee include regularly giving testimony) must now reveal in their reports only the "facts or data" they considered in forming their opinion, rather than "data or other information." See Fed.R.Civ.P. 26(a)(2)(B) (effective December 1, 2010). Non-reporting experts must disclose the subject matter of their testimony and a summary of the facts and opinions they will testify to. Fed.R.Civ.P. 26(a)(2)(C).

United States v. Sierra Pac. Indus., No. CIV S-09-2445 KJM EFB, 2011 WL 2119078, at *2 (E.D. Cal. May 26, 2011). Importantly, the amended Rule 26 now explicitly protects communications between a party's attorney and reporting experts. See Fed.R.Civ.P. 26(b)(4)(C) ("Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under 26(a)(2)(B), regardless of the form of the communication," with certain exceptions).

The 2010 amendments, however, did not create similar protection for communications between attorneys and non-reporting expert witnesses, instead leaving in place existing protections for such those communications. Sierra Pacific, 2011 WL 2119078, at *7 ("It is clear that the amended rule neither created a protection for communications between counsel and non-reporting experts witnesses, nor abrogated any existing protections for such communications.") Unfortunately, no Ninth Circuit authority clearly addresses whether designating a witness as a non-reporting expert waives all applicable privileges and protections of communications with that expert. In Sierra Pacific, the Court fashioned a somewhat flexible rule about the effect of designating a non-reporting witnesses, based on policy considerations voiced during the debate over the 2010 amendments. That rule distinguishes between non-reporting experts who more resembled reporting experts (e.g., employees who intermittently testified as experts) and so-called "hybrid fact and expert opinion witnesses" who should be treated unlike reporting experts. Id. at *10 (recognizing the importance of insuring that witnesses testifying about their personal knowledge of facts be unbiased and noting that sometimes "discovery should be permitted into such witnesses' communications with attorneys, in order to prevent, or at any rate expose, attorney-caused bias"). Sierra Pacific held that by designating hybrid fact and expert witnesses who had investigated the cause of a fire and therefore had percipient knowledge of facts at issue in the litigation, plaintiff waived all applicable privileges and protections for communications between counsel and those witnesses, because the fact-finder was entitled to evaluate potential biases in the witnesses' testimony revealed in communications with counsel. Id. at *10. I find the Court's analysis of the history of Rule 26 to be extremely thorough and lucid, and apply the method espoused by Sierra Pacific to this case.

Here, PacifiCorp argues that GTN's non-reporting expert witnesses Trent Van Egmond, Ed Toews, John Plaster, Larry Fox, and John Roscher are all hybrid fact and expert witnesses, since each has personal knowledge of topics for which he was designated as an expert. Indeed, GTN's expert disclosures for these witnesses — with the exception of John Roscher — indicate the witnesses may provide both expert and lay testimony, suggesting that, like the witnesses in Sierra Pacific, they possess percipient knowledge of disputed facts in this litigation. (Sasaki Decl., #198, Exs. 8,9.) Therefore, Van Egmond, Toews, Plaster, and Fox fall in the category of hybrid fact and expert witnesses whose designation as non-reporting experts serves to waive all applicable privileges and protections for items they considered that relate to the topic of their testimony.

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