While the use of experts in litigation has increased markedly in recent years, there are problems that counsel must be careful to consider
THE use of expert witnesses has increased since 1975 when Congress enacted the Federal Rules of Evidence, Rules 702 through 705 of which codify the expert's role in opinion testimony.(1) Expert testimony is not restricted to areas of scientific or technical knowledge. Rule 702 also permits expert testimony relating to "specialized knowledge" if it assists the trier of fact "to understand the evidence or to determine a fact in issue." Experts may come from the traditionally recognized fields of medicine, physics and architecture, and there may be "skilled" witnesses, such as bankers or landowners who testify as to land values.
Rule 702's broad construction has led to the use of expert witnesses in virtually all forms of civil litigation, from antitrust to personal injury.(2) However, the convenience of expert testimony does not come without certain risks to the hiring attorney. These risks include a potential waiver of certain work product protection and limits to the expert's legal opinion testimony.
To what extent are written and oral communications between counsel and a non-party expert witness discoverable under Rule 26 of the Federal Rule of Civil Procedure 26 when the expert witness will testify at trial? To what extent may an expert witness testify on a matter of law under Federal Rules of Evidence 702 and 704?
DISCOVERABILITY OF COMMUNICATIONS
A. Rule 26
The U.S. Supreme Court codified the common law work product rule of Hickman v. Taylor(3) in Federal Rule of Civil Procedure 26. The work product doctrine protects from discovery the attorney's written materials and mental impressions prepared in anticipation of litigation. Rule 26, as amended in December 1993, requires mandatory disclosures and amplifies the rules governing discovery of expert witnesses. The revised rule accents the competing demands between privileged communications and the fairness of thorough discovery. While the U.S. adversary system demands the ability to protect communications incorporating counsel's theories and mental impressions, liberal discovery rules are designed to promote judicial efficiency and credible testimony.
Federal district courts compel discovery of facts and materials that a testifying expert has reviewed, and discovery is typically not conditioned on whether counsel or another party provided the materials. Courts have taken inconsistent approaches when applying Rule 26 discovery to communications that incorporate counsel's work product. The growing trend is to permit thorough discovery, including communications that would otherwise be privileged. Alternatively, some courts view the amended Rule 26 as merely a procedural revision. These courts compel discovery but protect counsel's work product by redacting the privileged sections.(4)
Rule 26(a)(2)(B) requires the disclosure of the "data or other information considered" by expert witnesses in forming their opinions. Rule 26(b)(3), however, protects work product by excluding "mental impressions, conclusions, opinions, or legal theories of an attorney" from discovery. Communications between counsel and experts commonly incorporate the attorney's opinions, traditionally not discoverable, and facts that form the basis of the expert's opinion, always discoverable. Thus, an inherent conflict exists as to which portion of the rule is subordinated to the other.
Courts have harmonized the discovery and work product rules differently. Facilitating the inconsistency is each district's authorization to modify discovery rules. Rule 26(a)(1) allows district courts to modify the discovery process by local rule or order. So what are approaches to reconciling the inconsistencies as applied to various types of expert documents and communications?
B. Contractual Documents
Contractual documents recording the hiring of an expert's services by counsel are discoverable if found relevant to the claim's subject matter. …