In 1993, a large group of Ecuadorian villagers sued the oil giant, Texaco, in the Southern District of New York for allegedly polluting rain forests and rivers in Ecuador during oil exploration activities in the country between 1964 and 1992. The plaintiffs alleged that Texaco improperly disposed of substantial quantities of toxic substances, thereby contaminating the plaintiffs’ property and causing them to suffer various health problems, including poisoning and the development of pre-cancerous growths. After years of legal wrangling, the District Court ultimately dismissed the case on forum non conveniens grounds, and the Second Circuit affirmed in 2002. Undaunted, in 2003, the plaintiffs refiled their claims in an Ecuadorian court, by which time Chevron had merged with Texaco, and was substituted as a defendant.
In 2011, the Ecuadorian court awarded the plaintiffs approximately $18.2 billion in damages against Chevron. The substantial judgment has since spawned litigation across the globe as the plaintiffs have sought to enforce the award against Chevron’s assets in multiple countries, and Chevron has attempted to nullify the judgment (including a lawsuit in New York against the plaintiffs’ lead attorney alleging that the award was a product of intimidation, bribery and fraud). Most recently, in November 2013, Ecuador’s highest court upheld the lower Ecuadorian court’s verdict, but halved the fine imposed to $9.5 billion.
Behind all the headlines and the intrigue, the courts have quietly tackled a host of ancillary issues that, while not attracting media attention, have nevertheless presented interesting questions of law. One such question recently addressed by the 10th and 11th Circuits is whether the personal notes of testifying experts, and communications between such experts and non-attorneys, prepared in anticipation of trial, are protected under the work product doctrine as incorporated into Rule 26 of the Federal Rules of Civil Procedure (“Federal Rules”). See In re the Application of the Republic of Ecuador for Issuance of a Subpoena Under 28 U.S.C. Sec. 1782(a), 735 F.3d 1179 (10th Cir. 2013), and Republic of Ecuador v. Hinchee, No. 12-16216, 2013 WL 6655490 (11th Cir. Dec. 18, 2013).
The question arose as a result of an arbitration proceeding commenced by Chevron against the Republic of Ecuador (“Ecuador”) under the U.S.-Ecuador Bilateral Investment Treaty (“Treaty”) in the Permanent Court of Arbitration in The Hague, Netherlands, alleging that Ecuador had breached the Treaty through a pattern of improper and unfair conduct in connection with the legal proceedings against Chevron in Ecuador. In preparation for the arbitration, Ecuador sought discovery from experts who testified for Chevron in the Ecuadorian lawsuit.
Chevron objected to production of its experts’ personal notes, and communications between those experts and non-attorneys, prepared in anticipation of the Ecuadorian trial, on the grounds that such documents were entitled to work product protection under 2010 revisions to Federal Rule 26.
The analysis begins with Federal Rule 26(b)(3)(A), which incorporates the work product doctrine adopted in the Supreme Court’s seminal decision in Hickman v. Taylor, 329 U.S. 495 (1947), protecting the mental impressions and processes of attorneys from discovery. The above Rule provides in relevant part: “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed.R.Civ.P. 26(b)(3)(A).
Chevron primarily argued that the requested notes and communications of its experts were protected from disclosure by Federal Rule 26(b)(3)(A) because those documents were prepared “in anticipation of litigation or for trial” by its experts, and those experts constituted “representatives” within the meaning of Federal Rule 26(b)(3)(A).
Both the 10th and 11th Circuits concluded that the term “representative” in Federal Rule 26(b)(3)(A) does notinclude testifying experts. As the 10th Circuit noted, the six examples of “representatives” listed in the Rule describe someone acting on behalf of a party in either an agency or fiduciary capacity. 735 F.3d at 1185. In contrast, as noted by the 11th Circuit, while retained by one party, a testifying expert is expected to provide independent, impartial, qualified opinion testimony helpful to the trier of fact. 2013 WL 6655490, at *7. Further, the opposing side must have the opportunity to effectively cross examine a testifying expert. “Cloaking all materials prepared by or for a testifying expert under the work-product doctrine,” explained the 11th Circuit, “inhibits the thorough and sharp cross examination that is vital to our adversary system.” Id.
More significantly, both the 10th and 11th Circuits noted that a separate Rule – Federal Rule 26(b)(4) – explicitly addresses the scope of discovery available from experts. Indeed, as per comments accompanying enactment of Federal Rule 26(b)(4) in 1970, that Rule was specifically intended to “repudiate the few decisions that have held an expert’s information privileged simply because of his status as an expert,” and “reject as ill-considered the decisions which have sought to bring expert information within the work-product doctrine.” 2013 WL 6655490, at *5. Construing Federal Rule 26(b)(3)(A) to include testifying experts would render key parts of Federal Rule 26(b)(4) superfluous.
Concerning the 2010 revisions to the Federal Rules, both the 10th and 11th Circuits disagreed with Chevron’s contention that such revisions were intended to implement new, sweeping restrictions on the scope of discovery available from experts. Rather, both Circuit Courts concluded that the two new exemptions added in 2010 – Federal Rule 26(b)(4)(B) and Federal Rule 26(b)(4)(C) – were intended to protect only a narrow swath of expert-related documents from discovery, i.e., drafts of expert reports and communications between attorneys and experts. Indeed, the notes accompanying enactment of the above two provisions cautioned that they “do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions.” 2013 WL 6655490, at *5. Had the Advisory Committee wished to also exempt an expert’s own notes or his communications with non-attorneys from discovery, they could have easily done so; but they did not.
Accordingly, both the 10th and 11th Circuits affirmed lower court orders directing Chevron to produce the personal notes of its testifying experts, and communications between those experts and non-attorneys.
Please share your thoughts. Do you think that the discovery currently available from testifying experts under the Federal Rules is too broad and should be further restricted? How do those Rules affect how you work with testifying experts in preparing them for trial?