Commercial Litigation and Arbitration

Expert’s Notes, Outlines, Lists, Letters, Memoranda and Internal Communications with Staff Are Discoverable, Unless They Contain Theories or Mental Impressions of Counsel — 2010 Expert Rules Amendments

Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 60739 (D. Colo. April 26, 2013):

First, because it is the intention of the rules committee to protect the mental impressions and legal theories of a party's attorney, not its expert, 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 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.

With respect to communications involving testifying experts, only those communications between Bjorkman or his staff and the Respondents' counsel are protected. Id. at 514. Conversely, communications among Bjorkman, his staff and any non-attorneys (including experts) are not protected, even if an attorney is copied on the communication. Id. at 515. To the extent a communication is not directly between Bjorkman, his staff and counsel for Respondents, and contains no theories or mental impressions of counsel, it must be produced.

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