Insurance Bad Faith, Expert Witnesses and Privileged Communications

I received a pitch for an interesting seminar on the interrelationship of the federal rules governing expert discovery, the retention of experts in litigation, and the work product doctrine. The issue addressed by the seminar has to do with the fact that expert discovery under the federal rules at this point is very broad, and can result in disclosure to the opposing side of what would otherwise be privileged communications and documents detailing the strategies and thoughts of the attorney retaining the expert. This problem flows from changes to the federal rules governing discovery that make discoverable the documents and information considered by the expert in reaching an opinion in the case.

A significant body of case law, most of it at the federal district court level, now stands for the proposition that all information provided to such an expert is fair game for discovery, even if, absent disclosure to the expert, it would have been protected from discovery as privileged. The majority of the courts that have considered the issue have concluded that the current version of the federal expert discovery rule requires that any material that is reviewed by an expert witness must be disclosed, whether or not it would otherwise be protected from disclosure to an adversary by the work product doctrine or the attorney -client privilege. See Zheng v. Liberty Apparel Co., 2004 U.S. Dist. LEXIS 15026 (S.D.N.Y. Aug. 3, 2004). It has been held that the applicable federal rule requires the “disclosure of all information, whether privileged or not, that a testifying expert generates, reviews, reflects upon, reads, and/or uses in connection with the formulation of his opinions, even if the testifying expert ultimately rejects the information.” Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460, 464 (E.D. Pa. Dec. 21, 2005). This includes disclosing notes created by an expert witness in the capacity of an expert witness, even if the notes contain information that would have otherwise fallen under the protection of the attorney-client privilege or the work product doctrine. Id. at 464-65 (reasoning that notes authored by expert could contain information that bears on the credibility of the expert, his report, and his trial testimony).

The law in the First Circuit, where this blog has its metaphorical home, is consistent with this rule. In fact, courts in this circuit were out ahead of the curve on this issue. Years before the bulk of authority on this issue was decided, the federal district court for Massachusetts issued its ruling in Suskind v. Home Depot Corp., 2001 U.S. Dist. LEXIS 1349 (D. Mass. January 2, 2001), which holds to this effect and has been repeatedly cited by other courts as an example of the majority rule that requires disclosure of materials considered or created by an expert.

The scope of the obligation to disclose is broad. Information supplied to or reviewed by an expert, in connection with his opinion, is discoverable regardless of whether the expert actually relied upon the information in preparing his expert report. In re Pioneer Hi-Bred Int’l, Inc., 238 F. 3d 1370 (Fed. Cir. 2001). Even more importantly for purposes of the subject of this post, documents considered by a party’s expert are discoverable even if they were supplied to the expert by a party’s attorney. Suskind, 2001 U.S. Dist. LEXIS 1349 (D. Mass. January 2, 2001) (holding that attorney-work product materials considered by an expert are discoverable).

The end result of all of this, and the problem addressed by the seminar, is that it can become difficult to work with an expert, and to inform the expert, without exposing confidential material and information, including quite possibly the entire theory of the case, to discovery. While a relevant problem in all areas of federal litigation, and one that a good lawyer needs to work around in handling experts, this issue is particularly significant in insurance bad faith litigation, one of the topics of this blog.  This is because in that area, much more so than others, the theories of the case and the issues to be addressed with an expert are much more amorphous (imaginative rather than fact based, some defense lawyers would say) than they are in other types of cases, making it much harder to discuss an expert’s likely opinion without first disclosing the theory of the case to the expert.

There are ways around this problem, and the simple fact of the matter is that it is the job of a good litigator to know how to do it. Perhaps even more so, it is the job of a good litigator to know how to exploit errors in this regard that an adversary may make, which may open up an otherwise foreclosed area of discovery.