It's easy to forget that, before the 2010 amendments to the Federal Rules of Civil Procedure, attorney communications with testifying experts and drafts of expert reports were often discoverable by the other side.
The amended Federal Rules offer more protection to those kinds of materials. But since the change, some attorneys have become much more open in their communication with testifying experts, and some experts have become much less sensitive to avoiding written records.
But post-2010 Rule 26 does not protect everything relating to a testifying expert's work. In fact, it has gaping holes, and protects only two things: "drafts of any report or disclosure" and "communications between the party's attorney and any witness" (subject to some exceptions).
So, what about notes that the expert makes on a document, such as his or her copy of the opposing expert's report? Those may be discoverable:
The law provides that annotations made by an expert on another expert's report typically amount to "facts or data" that the expert has considered in formulating his or her own opinions, and therefore must be disclosed. . . . On the other hand, if the annotations constitute drafts of a to−be−submitted expert report, then they are work product that is protected from disclosure.
Sysmex Corporation v. Beckman Coulter, Inc., C.A. No. 19-1642-RGA-CJB, D.I. 388 (D. Del. Nov. 8, 2021) (Burke, J.).
On Monday, in Sysmex, Judge Burke addressed a situation where—according to the parties' discovery dispute letters—an expert initially stated at deposition that he had only read “the first 20 percent” of the opposing expert's report.
Later in the deposition, likely realizing that statement would come back to haunt him, he tried to walk it back. He brought up the fact that he had annotated the opposing expert's report as a way to prove that he had actually read it:
Yes, I believe I annotated, on the documents that I can write on, I annotated the details of the 600-page document fairly well in the document I was reviewing.
That, of course, piqued the interest of opposing counsel, who asked to see the report on his laptop. The expert suggested he might not remember the password to his laptop, and counsel then instructed him not to do show the report. See Sysmex Corporation v. Beckman Coulter, Inc., C.A. No. 19-1642-RGA-CJB, D.I. 372 (D. Del. Oct. 14, 2021) (plaintiff's opening letter).
The Court ultimately ordered the party to produce all but three of the annotations, after in camera review:
[A]fter reviewing BCI's in camera submission letter, the annotations themselves and [the expert] Mr. Roche's reply report, the Court concludes that [defendant] BCI has not sufficiently demonstrated that these annotations amounted to drafts of portions of Mr. Roche's reply report. In light of that, it otherwise appears that this material constitutes "facts or data" that Mr. Roche at least considered in forming his expert opinions in the case (or to the extent it could somehow be said that Mr. Roche did not consider this information, BCI has not sufficiently demonstrated how that is so). The Court therefore GRANTS Sysmex's request for an order compelling [production of these] annotations . . . .
The Court did deny the request as to three specific annotations that could be considered drafts of a reply report:
[T]he Court can see how the content of [the three] annotations formed portions of Mr. Roche's reply report, and therefore finds that these annotations can be considered to be drafts of that report, thus making them protected work product.
This is definitely something to keep in mind when working with experts—and when prepping them for deposition.
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