by Robert Ambrogi - Editor
BullsEye Newsletter: September 2006
Just 10 days after the American Bar Association voted for a rule to bar discovery
of communications between attorneys and their experts, the 6th U.S. Circuit
Court of Appeals became the second federal appellate court to require such
disclosure.
In an Aug. 17 opinion, the court held that federal evidence rule 26 requires
disclosure of all information provided to testifying experts, including attorney-opinion
work product.
On Aug. 7, the American Bar Association's House of Delegates, meeting in Honolulu,
voted 207-137 to recommend amending rule 26 to protect expert draft reports and
communications between attorneys and their experts. The ABA forwarded its recommendation
to the Supreme Court's advisory Committee on Civil Rules.
The ABA proposal came about because of nationwide differences among judges in
applying rule 26, with some protecting work product and draft reports and others
requiring their disclosure.
The 6th Circuit acknowledged that rule 26 has spawned two lines of cases regarding
work-product disclosure. "The first holds that attorney work product is
not discoverable merely because it has been shared with a testifying expert. … The
second holds that Rule 26 creates a bright-line rule requiring disclosure of
all information provided to testifying experts, including attorney opinion work
product."
But the second, the court said, is the view of the majority of courts and of
the only other federal circuit to have decided the issue, the Federal Circuit
Court of Appeals. It was also the view adopted by the trial court in the case
on appeal.
A "plain reading" of rule 26 supports this majority view that it "now
requires disclosure of all information provided to testifying experts," the
court concluded.
Having decided that the rule requires disclosure, the court went on to examine
the extent of that disclosure. The appellant contended that rule 26 required
disclosure only of the facts known to or relied upon by the testifying experts,
not other information such as opinions.
But the court, finding no language in the rule or in the advisory committee notes
that would suggest limits on the extent of the required disclosure, concluded
that none were intended.
"The bright-line approach is the majority rule, represents the most natural
reading of Rule 26, and finds strong support in the Advisory Committee Notes," the
court said. "Therefore, we now join the 'overwhelming majority' of courts … in
holding that Rule 26 creates a bright-line rule mandating disclosure of all documents,
including attorney opinion work product, given to testifying experts."
The opinion is Regional Airport Authority of Louisville and Jefferson County
v. LFG, LLC, No. 05-5754, www.ca6.uscourts.gov/opinions.pdf/06a0302p-06.pdf.
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