Lawyers, Experts, Work Product, Waiver

The Washington State Court of Appeals Division Three has held that some disclosure protections exist in communications between an attorney and a testifying expert

Two issues are before us. The first issue is whether an attorney may assert attorney work product protections over documents the attorney prepared and sent to a testifying expert. We answer that the attorney may, but that attorney work product protections are waived to the extent the attorney provided facts to the testifying expert to serve as the bases for that expert’s opinions. The second issue concerns whether a testifying expert’s draft opinions are discoverable or whether they are protected by expert witness work product protections. We answer that draft opinions are subject to testifying expert work product protections and are not discoverable.

We reverse the trial court’s order and remand to the special discovery master for an in camera review consistent with this opinion.

In a medical malpractice case brought by an estate, the defendants demanded production of all communications between counsel and an expert witness.

The special discovery master ordered production, rejecting the asserted work product privilege, concluding

[T]here is no attorney-client privilege between plaintiffs’ counsel and Dr. Simons that would protect from disclosure documents … exchanged between plaintiffs’ counsel and Dr. Simons, and that plaintiffs’ claim of a “work product” privilege protecting communications between plaintiffs’ counsel and Dr. Simons is inapplicable in that Dr. Simons is a testifying expert.

The court noted that the state rules differ from the federal provisions and considered waiver

It is common for an attorney to provide a testifying expert a written factual summary and supporting materials that serve as a foundation for the expert’s trial testimony. The attorney anticipates that the expert witness will rely on these facts and to also testify that these facts are the bases of his or her opinions. Proper examination of the expert witness requires an opposing attorney to know the facts relied on by the expert witness. CR 26(b)(5)(A)(i) requires disclosure of these facts. But the disclosure by interrogatory answers often lacks factual detail. Because disclosure of such facts is required, it is consistent with our civil rules that the opposing attorney have a mechanism by which the factual details can be discovered. But more germane to the issue of waiver, because an attorney knows that disclosure of such facts to the opposing party is required by CR(b)(5)(A)(i), we may infer that the attorney relinquished attorney work product protections by intentionally submitting factual materials to a testifying expert…

To the extent Dr. Simons prepared written opinions, expected to testify about those opinions, and disclosed those opinions to plaintiffs’ counsel, we presume that Dr. Simons knew that plaintiffs’ counsel must disclose those opinions to opposing counsel. From this, we may infer that Dr. Simons relinquished work product protections to such written opinions, and they are discoverable. But to the extent Dr. Simons prepared draft opinions, because he will not testify about draft opinions, we cannot infer that he waived work product protections to those draft opinions, and they are not discoverable.

Chief Judge Fearing dissented

I humbly, but dutifully, dissent. Dr. Michael Wukelic deserves to discover all and complete communications between the Estate of Michael Dempsey’s (Estate) testifying expert, Dr. Steven Simons, and the Estate’s counsel. Counsel’s sharing of her thoughts and strategies with a testifying witness waives the attorney work product doctrine for not only facts supplied, but also opinions and impressions. I would affirm the trial court.

The dissent looks to federal rules for guidance and notes

No Washington decision directly addresses whether an opposing party may garner correspondence between a testifying expert and the counsel hiring the expert. A Washington decision in another context, however, directed disclosure of even the mental impressions and theories, placed on paper, of an attorney…

Several related policy reasons support a rule that favors production of any information that the expert reviews. First, the adverse party must obtain the materials or documents that a testifying expert considers in order to discern the extent to which the opinion of the expert may have been influenced by counsel. B. CF. Oil Refining, Inc. v. Consolidated Edison Co. of New York, 171 F.R.D. at 66; Karn v. Ingersoll Rand, 168 F.R.D. at 638. Second, without the materials, the opposing party will be denied the opportunity to a full and fair cross-examination of the expert witness. Third, the factfinder is entitled to evaluate potential biases in the witnesses’ testimony revealed in communications with counsel. PacifiCorp v. Northwest Pipeline GP, 879 F. Supp. 2d at 1213.

Proper cross-examination of an expert witness requires that the adverse party know the facts underlying the expert’s opinions, including whether the expert made an independent evaluation of those facts or whether he instead adopted the opinions of the lawyers that retained him. Elm Grove Coal Co. v. Director, Office of Workers’ Compensation Programs, 480 F.3d 278, 301 (4th Cir. 2007); Musselman v. Phillips, 176 F.R.D. at 200. The weight accorded to an expert’s opinion must vary in accordance with the expert’s competence and knowledge. Occulto v. Adamar of New Jersey, Inc., 125 F.R.D. at 615-16. An expert who can be shown to have adopted the attorney’s opinion as his own stands less tall than an expert who engaged in painstaking inquiry and analysis before arriving at an opinion. Occulto v. Adamar of New Jersey, Inc., 125 F.R.D. at 616.

Thus

Because I would hold that the Estate of Michael Dempsey must produce all correspondence between Dr. Steven Simons and the Estate’s counsel, I would conclude that no privilege log need be prepared. I also note that counsel remains free to openly discuss theories and strategy with a nontestifying expert, sometimes referred to as a consulting expert, without waiving the attorney work product doctrine.

(Mike Frisch)