Legal News and Developments

Civil Procedure: Sixth Circuit Requires Disclosure of Attorney Work Product Provided to Expert Witnesses

Here’s a good update and analysis compliments of the Sixth Circuit Blog regarding expert witnesses and disclosures of privileged materials:

In a ruling of first impression in the Sixth Circuit on whether attorney opinion work product given to expert witnesses is discoverable under Rule 26 of the Federal Rules of Civil Procedure, the Court joined the Federal Circuit and a majority of district courts in holding that the expert disclosure requirements of Rule 26(a)(2)(B) establish a "bright-line" rule mandating the disclosure of all documents given to testifying experts, specifically including attorney opinion work product.

In affirming the discovery order of the Western District of Kentucky in Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006), the Court expressly relied on the text of Rule 26(a)(2)(B) as amended and on the Advisory Committee Notes from the 1993 amendments to the Civil Rules that added the expert disclosure requirements.

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One Response to Civil Procedure: Sixth Circuit Requires Disclosure of Attorney Work Product Provided to Expert Witnesses

  1. David Kramer says:

    Thanks for pointing this case out. I had prepared some new commentary for the West Kentucky Practice book on work product pointing out the two lines of cases on this issue, and based on my research I had only found one Federal Circuit Court opinion, the Federal Circuit’s decision in the Pioneer High-Bred case, that had squarely addressed the issue. The new 6th Circuit case takes the same approach in favoring broad discoverability and finding waiver of work product by producing material to testifying experts. I will try to remember to post the new commentary (with an appropriate copyright disclaimer) when I get some time in the office next week.
    These cases highlight the need for attorneys to be cautious in deciding what documents to provide to potential experts. Letters saying “here’s what I think about the case, what do you think” should not be sent. Rather, providing pertinent discoverable documents and then following up with verbal consultation and questioning is much more conducive to maintaining confidentiality of the attorney’s work product.
    Plaintiffs’ lawyers providing work product to prelitigation experts may still claim protection under Newsome v. Lowe and Alliant Hospitals v. Benham, though Alliant v. Benham appears to have softened the Newsome holding a little and noted the trend toward discovery.

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