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Are Expert Witness Communications with Attorney Work-Product?

Kurt R. Mattson, J.D., LLM, M.L.I.S.

January 30, 2018


Defendant rear-ended Plaintiff while he was stopped at a red light. The parties stipulated that Defendant was negligent, but left the issues of causation and damages for the jury.

Plaintiff claimed that his alleged injuries limited his ability to work as a nurse, but he didn’t leave nursing until shortly after he filed this lawsuit.

Plaintiff requested $2 million in damages, but the jury found that his injuries weren’t caused by the accident.

The jury didn’t reach the question of damages, and Plaintiff appealed.

In discovery, Plaintiff's vocational rehabilitation expert disclosed to the defense several documents and emails that, Plaintiff argued, were covered by attorney work-product protection.

Plaintiff argued the inadvertent disclosure didn’t necessarily result in a waiver. He also argued that Defendant hadn’t made the requisite showing that he had a "substantial need" for the alleged work-product and that he was "unable without undue hardship to obtain the substantial equivalent of the materials by other means,” pursuant to Maryland Rule 2-402(d).

The trial court rejected Plaintiff's contentions and permitted Defendant to introduce the email exchange between the expert and Plaintiff, and the expert and Plaintiff’s attorney into evidence.

The court didn’t permit Defendant to introduce an outline of the expert's direct examination, but it did permit him to question the expert about its contents.

Judge Kevin Arthur of the Maryland Court of Special Appeals quoted precedent in his opinion holding that the work-product doctrine "protects from discovery the work of an attorney done in anticipation of litigation or in readiness for trial.”

Further, even though it’s often referred to as a privilege, the work product doctrine isn’t a privilege, but rather is “merely a requirement that very good cause be shown if the disclosure is made in the course of a lawyer's preparation of a case.”

There are two types of work-product the judge explained, fact and opinion. The Maryland Evidence Handbook states that fact work product generally consists of materials gathered by counsel (or at counsel's instructions) in preparation of trial, and opinion work product concerns the attorney's mental processes.

Neither fact nor opinion work product are ordinarily discoverable, however opinion work product, “is almost always completely protected from disclosure.”

The proponent of the protection has the burden of showing that the materials satisfy the definition of work-product.

Once the court determines whether the materials do or don’t fall within the definition, the appellate court reviews that determination for clear error.

If the determination was reasonable, the appellate court must affirm.

In this case, Defendant’s exhibits consisted of an email exchange between the expert and Plaintiff written on the day before he was scheduled to meet with Defendant’s vocational rehabilitation expert, in which the expert advised Plaintiff about how to address the defense contention that he wasn’t mitigating his damages.

Judge Arthur held that the emails weren’t the work-product of Plaintiff's attorney, weren’t prepared at the attorney's instruction or under his supervision, and didn’t reveal his mental processes. As a result, work-product protection didn’t extend to that email exchange.

Judge Arthur noted that although the work-product protection extends to work done by representatives of the party, such as a "consultant, surety, indemnitor, insurer, or agent" in Rule 2-402(d), this list doesn’t include a testifying expert.

This omission, the judge explained, may be attributable to the expectation that the expert should deliver an objective yet persuasive opinion, rather than “merely serve as a mouthpiece for the attorney.”

Another exhibit consisted of an email exchange between the expert and Plaintiff's attorney, in which the attorney advised the expert about how to avoid his obligation to produce documents to Defendant's counsel.

Because the principal focus of the work-product protection is to "encourage[] careful and thorough preparation of the case by the attorney so that the adversarial process can elicit the truth," it was inconceivable, the judge said, that the protection would allow the suppression of relevant evidence of an attorney assisting a testifying expert about how to defeat his discovery obligations.

Thus, the work-product protection didn’t extend to this exhibit.

The final exhibit contested was the outline of the expert's proposed testimony, which Plaintiff's attorney sent to the expert, and the expert then turned over to the defense. Citing the analogous federal work-product protection, "when an attorney communicates otherwise protected work product to an expert witness retained for the purposes of providing opinion testimony at trial — whether factual in nature or containing the attorney's opinions or impressions — that information is discoverable if it is considered by the expert."

Under Federal Rule of Evidence 611(b) (on which Maryland Rule 5-611(b) is based), "cross-examination of an expert may focus not only on the subject matter of the expert's direct examination, but also on any matters affecting the credibility of that witness, and any of the factors which traditionally affect the credibility of a witness are accordingly fair game on cross-examination.”

Citing a federal court opinion, in pretrial discovery, it’s “essential that parties be able to discover not only what an opposing expert's opinions are, but also the manner in which they were arrived at, what was considered in doing so, and whether this was done as a result of an objective consideration of the facts, or directed by an attorney advocating a particular position.”

Further, when an attorney has interjected him or herself into the process by which a testifying expert forms the opinions to be testified to at trial, it impacts the weight that the expert's testimony deserves.

The work-product protection is designed to deter litigants from taking a “free ride” on the thought processes of their opposing counsel, but when “an attorney communicates opinion work product to an expert witness specifically intended to testify at trial for the purpose of shaping the testimony which will be offered, he or she unavoidably foresees the likelihood that those opinions will be communicated to the fact finder, through the expert."

The protection is also designed to foster privacy in the development of theories, opinions, and strategies, but “this interest is hardly served when the attorney discloses them to a retained expert in order to shape opinion testimony to be offered at trial.”

Finally, the protection is designed to "protect the integrity of the adversary system," but this interest too "is not served by depriving an opposing attorney of the means to expose the weaknesses in the opinion testimony of an adverse party's expert witness."

Judge Arthur said that it wouldn’t further any of the policies underlying the work-product protection to hold that it applies when an attorney sends the script of an expert's direct examination to the expert.

The work-product protection, therefore, didn’t extend to the outline.

Citing the advisory committee's notes, the judge noted that Rule 26(b)(4)(B) was added to provide work-product protection under Rule 26(b)(3)(A) and (B) for drafts of expert reports or disclosures.

In addition, Rule 26(b)(4)(C) was added to state that the protection applies to certain attorney-expert communications "regardless of the form of the communications, whether oral, written, electronic, or otherwise."

Even under the amended rule, however, the protection doesn’t apply "to the extent that the communications . . . identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed[.]"

The judge opined that it was “at the very least, open to question whether the amended rule would protect an attorney-drafted script of the expert's direct examination.” Nonetheless, Maryland's expression of the work-product protection doesn’t contain any of the express limitations of amended Rule 26(b).

In summary, Judge Arthur held that it was more than reasonable for the trial court to conclude that Defendant's exhibits didn’t fall within the definition of work-product.

The judgment of the Circuit Court for Prince George's County was affirmed.

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