Experts — Degree of Appropriate Lawyer Involvement in Drafting Expert Report — “Commandeering” Report Lifts Work Product Protection for Drafts and Attorney-Expert Communications

Gerke v. Travelers Cas. Ins. Co. of Am., 2013 U.S. Dist. LEXIS 22254 (D. Or. Feb. 19, 2013):

The 2010 amendments added work-product protection for drafts of expert's reports and expert's "preliminary reports" under Rule 26(b)(4)(B). Advisory Committee Notes, 2010 Amendments, comments to subdivision (b)(4). The amendments also protect from disclosure attorney-expert communications, in whatever form, to "ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery." Id. The amendments specified three exceptions to this protection: expert compensation, facts or data provided to the expert by counsel and which the expert considered in forming his or her opinion, and assumptions counsel provided to the expert and that the expert relied upon in forming his or her opinions. Id. Discovery outside these three exceptions or of draft reports may be had only upon a showing of "substantial need." Id. If that showing is made, the court "must protect against disclosure of the attorney's mental impressions, conclusions, opinions, or legal theories[.]" Id.

Rule 26(b)(4)'s purpose is to protect from disclosure communications between a lawyer and the lawyer's retained expert, including draft or preliminary reports, as attorney work-product, but this protection is not unlimited. Rule 26(b)(4)'s exceptions preserve the integrity of experts' opinions by making discoverable lawyers' communications that jeopardize the experts' independence. Here, the parties' dispute presents the question whether Plaintiff's counsel's assistance drafting some or all of Painter's report invokes one or more of the rule's exceptions and removes those communications, including drafts, from Rule 26(b)(4)'s protection. The answer depends on the nature and extent of the lawyer's assistance:

The advisory committee note observes that Rule 26(a)(2)(B) does not preclude counsel from providing assistance to the experts in preparing the reports and recognizes that such assistance may be necessary. Courts have followed the advisory committee note and found that counsel may assist the expert in preparing the report as long as the attorney does not change the substance of the opinion of the expert witness.

....

When a challenge is raised as to whether the expert actually prepared the report, courts focus on whether the expert witness offered substantial input into what was put into the report. Whether counsels' assistance in preparing an expert report violates Rule 26 is a fact-specific inquiry.

The fact that counsel helped with preparation of an expert report goes to the weight to be accorded to the opinions rather than admissibility.

6 Daniel R. Coquillette, Gregory P. Joseph, et. al., MOORE'S FEDERAL PRACTICE, § 26.23[5] (3d ed. 2012)(footnotes omitted). Others may assist in the preparation of the report but the expert must freely authorize and adopt the changes as his or her own, and the final report must be that of the expert. Id.

***

Communications between a lawyer and the lawyer's testifying expert are subject to discovery when the record reveals the lawyer may have commandeered the expert's function or used the expert as a conduit for his or her own theories. When the record presents that possibility, the lawyer may not use the attorney work-product privilege as a shield against inquiry into the extent to which the lawyer's involvement might have affected, altered, or "corrected" the expert's analysis and conclusions.

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