Commercial Litigation and Arbitration

Expert Discovery — Notes, Outlines, Lists, Letters, Emails, and Memoranda Prepared by Expert or Non-Attorney Concerning Draft Report Are Not Protected under 2010 Amendments

Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 909 (D. Colo. Jan. 3, 2013):

Respondents contend that, following the December 7, 2012 production, they continue to withhold (1) outlines of draft reports; (2) memoranda addressed to or from an attorney; (3) email communications copying an attorney but addressing that attorney directly in the email; and (4) emails discussing legal advice or requests from counsel and documents created by an attorney. Petitioners claim that Respondents are withholding additional categories of documents: (5) emails from non-attorneys to non-attorneys; (6) emails and documents identified with different assertions of privilege; (7) new documents added to latest privilege log; and (8) draft reports by experts other than Bjorkman.

As set forth in this Court's January 4, 2012 order, only two categories of documents are protected in accordance with Fed. R. Civ. P. 26(b)(4)(B) and 26(b)(4)(C). The first category is drafts of expert reports or disclosures, and the second is direct communications between the attorney and the expert witness, unless the communication involves compensation for the expert's study or testimony, facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed, or assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

As this Court stated in its January 4, 2012 order, it is the intention of the rules committee to protect the mental impressions and legal theories of a party's attorney, not its expert. Thus, notes, outlines, lists, letters and memoranda prepared by an expert or non-attorney concerning or relating to draft expert reports are not protected and must be disclosed. See In re Republic of Ecuador, No. 12-mc-00008 GSA, 2012 U.S. Dist. LEXIS 17948, 2012 WL 487158, at *2 (E.D. Cal. Feb. 14, 2012). However, notes and memoranda prepared by attorneys in preparation of litigation are protected work product and shall not be produced. See In re Application of Republic of Ecuador, 280 F.R.D. 506, 513 (N.D. Cal. 2012). Furthermore, actual drafts of expert reports, whether authored by Bjorkman or his co-authors or staff, are protected and need not be produced. Id. at 512. Accordingly, Respondents must revise their privilege log in accordance with this order and produce notes, memoranda, lists, letters and outlines of or relating to draft expert reports that are drafted by non-attorneys (including experts) to the Petitioners within five business days of the date of this order. Any documents Respondents continue to withhold under this category of "draft reports" must be produced to the Court in camera, together with a written explanation for withholding the document and a copy of the revised privilege log, within five business days of the date of this order.

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