Eleventh Circuit: Testifying Expert's Notes and Communications with Non-attorneys Not Covered by Work-product Doctrine | Practical Law

Eleventh Circuit: Testifying Expert's Notes and Communications with Non-attorneys Not Covered by Work-product Doctrine | Practical Law

In Republic of Ecuador v. Hinchee, the US Court of Appeals for the Eleventh Circuit held that Rule 26 of the Federal Rules of Civil Procedure (FRCP) does not extend work-product protection to a testifying expert's personal notes and communications with non-attorneys. Affirming the district court's opinion, the Eleventh Circuit underscored that the 2010 amendments to Rule 26 insulate only the core work-product of attorneys from discovery, leaving the opinions and reasoning of testifying experts exposed.

Eleventh Circuit: Testifying Expert's Notes and Communications with Non-attorneys Not Covered by Work-product Doctrine

by Practical Law Litigation
Published on 20 Dec 2013 • USA (National/Federal)
In Republic of Ecuador v. Hinchee, the US Court of Appeals for the Eleventh Circuit held that Rule 26 of the Federal Rules of Civil Procedure (FRCP) does not extend work-product protection to a testifying expert's personal notes and communications with non-attorneys. Affirming the district court's opinion, the Eleventh Circuit underscored that the 2010 amendments to Rule 26 insulate only the core work-product of attorneys from discovery, leaving the opinions and reasoning of testifying experts exposed.
In a December 18, 2013 opinion, Republic of Ecuador v. Hinchee, the US Court of Appeals for the Eleventh Circuit held that Rule 26 of the Federal Rules of Civil Procedure does not extend work-product protection to a testifying expert's personal notes and communications with non-attorneys (No. 12-16216, (11th Cir. Dec. 18, 2013)). Affirming the district court's opinion, the Eleventh Circuit underscored that the 2010 amendments to Rule 26 insulate only the core work-product of attorneys from discovery, leaving the opinions and reasoning of testifying experts exposed.

Background

The case arose from litigation between Chevron Corporation (Chevron) and Ecuadorian plaintiffs regarding environmental contamination caused by oil exploration in the Amazon. During the course of a related arbitration between Chevron and the Republic of Ecuador, Ecuador sought discovery from Dr. Robert Hinchee, an expert utilized by Chevron in the litigation, by requesting that the US District Court for the Northern District of Florida (where Hinchee resided) issue a subpoena. Hinchee and Chevron claimed work-product protection over these documents. After reviewing a sample set of the documents, the district court concluded that work-product protection:
  • Applied only to draft expert reports and expert communications with attorneys.
  • Did not apply to Hinchee's notes or communications with non-attorneys.
Hinchee and Chevron appealed.

Outcome

The court began its analysis by stating that the documents sought clearly fell within the scope of Rule 26 for discovery.
In examining Rule 26, the court concluded:
  • Rule 26(b)(3)(A) is inapplicable to testifying experts.
  • Rule 26(b)(4) is the relevant rule to be applied when analyzing discoverable information held by an expert witness.
  • The 2010 amendments to Rule 26(b)(4) did not impede the discovery of expert opinions and reasoning to be offered at trial, but rather evidenced a decision to extend work-product protection only to draft expert reports and attorney-expert communications. By expressly and purposefully omitting experts' notes and communications with non-attorneys, the advisory committee meant to exclude these documents from protection. In addition, the court warned that protecting all materials prepared by an expert in advance of testimony would inhibit the sharp cross examination that is essential to the adversarial process.
  • The 2010 amendments to Rule 26(a)(2)(B) narrowed expert disclosure requirements but were never meant to reach an expert's notes or communications with non-attorneys. Extending protection so far would distort the purpose of the work-product doctrine and damage the adversarial process by blunting the ability of attorneys to cross-examine effectively.
Recognizing that the documents at issue were Hinchee's personal notes and communications with non-attorney experts, the Eleventh Circuit affirmed that they were beyond work-product protection and were therefore discoverable.

Practical Implications

In light of this case, counsel with cases pending in the Eleventh Circuit should be aware that the scope of work-product protection afforded to expert materials is very narrow, applying only to draft expert reports and communications between experts and attorneys. Furthermore, testifying experts should be advised that any personal notes they draft, or communications with non-attorneys, will be discoverable by an opposing party.