Work Product Ruling at Odds With ABA

By Robert Ambrogi Esq
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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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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