Ninth Circuit Joins Tenth and Eleventh Circuits in Narrowly Limiting Work Product Protection Over Expert Materials | Practical Law

Ninth Circuit Joins Tenth and Eleventh Circuits in Narrowly Limiting Work Product Protection Over Expert Materials | Practical Law

The US Court of Appeals for the Ninth Circuit issued a joint decision in Republic of Ecuador v. Mackay and Republic of Ecuador v. Kelsh holding that Federal Rule of Civil Procedure (FRCP) 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials.

Ninth Circuit Joins Tenth and Eleventh Circuits in Narrowly Limiting Work Product Protection Over Expert Materials

by Practical Law Litigation
Published on 03 Feb 2014 • USA (National/Federal)
The US Court of Appeals for the Ninth Circuit issued a joint decision in Republic of Ecuador v. Mackay and Republic of Ecuador v. Kelsh holding that Federal Rule of Civil Procedure (FRCP) 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials.
On January 31, 2014, the US Court of Appeals for the Ninth Circuit issued a joint decision in Republic of Ecuador v. Mackay and Republic of Ecuador v. Kelsh holding that FRCP 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials (Nos. 12-15572, 12-15848, (9th Cir. Jan. 31, 2014)).
The case arose from litigation between Chevron Corporation (Chevron) and Ecuadorian plaintiffs regarding environmental contamination caused by oil exploration in Ecuador. During the course of a related arbitration between Chevron and the Republic of Ecuador, the Republic and Diego Garcia Carrion (the Applicants) sought discovery for use in a foreign proceeding under 28 U.S.C. § 1782 from Douglas Mackay in the US District Court for the Eastern District of California. The Applicants filed a similar application in the US District Court for the Northern District of California seeking discovery from Michael Kelsh. Mackay and Welsh served as Chevron's expert witnesses in the litigation. Both district courts granted the § 1782 applications. Chevron withheld documents claiming that they were privileged. The Applicants objected to the privilege claims and eventually raised the disputes with the district courts.
In Mackay, Chevron was required to produce all documents listed on its privilege log except:
  • Mackay's draft reports.
  • Certain communications directly between Mackay and counsel.
In Kelsh, Chevron was required to produce all withheld documents except:
  • The expert's draft reports.
  • The draft worksheets.
  • Communications among Kelsh and his assistants.
  • Communications between Kelsh and his assistants, and Chevron attorneys.
Chevron and its experts appealed from the two district court decisions arguing that the district courts erred because many of the documents at issue were protected from discovery under Rule 26(b)(3).
On appeal, the Ninth Circuit affirmed the district courts. The Ninth Circuit rejected Chevron's argument that Rule 26(b)(3) protects the disputed documents as materials prepared in anticipation of litigation "by or for" a party or its "representative." In analyzing the text and the historical context of Rule 26(b)(3), the Ninth Circuit determined that:
  • While Rule 26(b)(3) protects materials prepared in anticipation of litigation generally, Rule 26(b)(4) separately governs the protection of expert materials.
  • The 2010 amendments to FRCP 26(b)(4) were intended to provide work product protection for experts' draft reports, and communications between expert witnesses and counsel. The permissible scope of discovery of expert materials otherwise remained broad.
  • The 2010 amendments to FRCP were not intended to expand Rule 26(b)(3)'s protection for trial protection materials to all expert materials. To do so would unfairly hamper an adverse party's ability to prepare for cross-examination and rebuttal.
The Ninth Circuit joined the US Courts of Appeals for the Tenth and Eleventh Circuits in nearly identical appeals in holding that the scope of work product protection for expert materials is very narrow, applying only to draft expert reports and communications between experts and attorneys.