In a November 13, 2013 opinion, Republic of Ecuador v. Bjorkman, the US Court of Appeals for the Tenth Circuit considered the application of FRCP 26's work product doctrine to expert witnesses. Rejecting a broad reading of the 2010 amendments to FRCP 26, the court held that work product protection extends only to the narrow categories of material specifically delineated in the rule and affirmed a district court order compelling discovery of all other expert materials.

Since the early 1990s, Chevron and its predecessor company, Texaco, Inc., have defended litigation in US and Ecuadorian courts concerning Texaco's operation in Ecuador and the environmental contamination it allegedly produced. In February 2011, an Ecuadorian court entered an $18.2 billion judgment against Chevron, currently on appeal. Prior to this judgment being issued, Chevron had commenced investment treaty arbitration under United Nations' rules alleging due process, fair treatment and international-law rights violations by the Ecuadorian courts. Immediately following the Ecuadorian court judgment, the arbitral tribunal ordered that all efforts to enforce the judgment be stayed pending further order of the tribunal. Gearing up for arbitration, both sides filed numerous 28 U.S.C. § 1782 applications seeking discovery of evidence for use in a foreign proceeding.

Section 1782 allows a district court to compel discovery for use in a foreign or international proceeding. The Republic of Ecuador filed a Section 1782 application in the US District Court for the District of Colorado seeking discovery from Bjorn Bjorkman, one of Chevron's experts in the Ecuadorian suit. The district court adopted the magistrate judge's recommendation to grant the Republic's application. Following that order, Chevron produced all of the facts and data that Mr. Bjorkman considered in forming his expert opinions. However, Chevron withheld thousands of documents that it believed fell under FRCP 26's work product doctrine.

The Republic then filed a motion to compel further discovery, which the magistrate judge partially granted. The magistrate judge held that Chevron could:

The district court affirmed and adopted the magistrate's recommendation in full. Chevron appealed. While the appeal was pending, the Republic filed a second motion to compel contending that Chevron continued to improperly withhold documents, and the magistrate judge filed two more orders clarifying the scope of the earlier order. The district court never adopted these latter orders.

As an initial matter, the Tenth Circuit ruled sua sponte that the district court's order compelling discovery was properly considered a "final decision" for purposes of appellate jurisdiction. Because a 28 U.S.C. § 1782 proceeding is not merits-based, but rather based entirely on compelling discovery for use in a foreign tribunal, the district court's last order regarding discovery was a "final decision" properly subject to appeal.

As to the merits of the appeal, Chevron argued that the 2010 amendments to FRCP 26 caused a "sea change" in the discoverability of documents held by experts and restored broad work product protection to this material. Specifically, Chevron argued that:

The Tenth Circuit rejected all of Chevron's work product arguments, stressing that the work product doctrine is intended only to guard against divulging an attorney's strategies or legal impressions.

The court found that FRCP 26(b)(3)(A)'s provision that a party may not discover documents prepared in anticipation of litigation "by or for another party or its representatives" does not extend to a party's expert. The court held that the provision plainly applies only to agents or fiduciaries that stand in the legal shoes of the party and are therefore entitled to the same work product protection as the party itself. As Chevron did not show that the expert would have capacity to act on behalf of a party in this case, the expert was not entitled to work product protection. Moreover, the traditional understanding of work product protection as covering only the mental processes of an attorney militated against a finding that expert materials are protected under FRCP 26(b)(3).

The court next rejected Chevron's argument that the 2010 revisions to FRCP 26(a)(2) and (b)(4) restored broad work product protection to expert materials, only allowing discovery of the bare-bones factual information underlying an expert's opinion. The court held that the revisions created two exclusive categories of work product protection afforded to expert trial-preparation materials: draft reports and attorney-expert communications. Contrary to Chevron's contention, the revisions only clarified the bounds of disclosure in cases involving these specific types of materials. Had the drafters of the rule intended for broader protections, they could have bolstered the rule rather than providing only two explicit protections. Instead, the revisions were meant to restore the core understanding of the work product doctrine as solely protecting the inner workings of an attorney's mind.

As a result, the Tenth Circuit affirmed the district court's order granting the Republic's motion to compel disclosure of the expert materials, except for those materials specifically protected by FRCP 26(b)(4)(B) and (C).

Counsel attempting to shield disclosure of expert information in the Tenth Circuit should be aware of the limited protections afforded this information, extending only to the categories of information expressly provided in the FRCP 26(b)(4)(B) and (C).