Discovery of Written Correspondence Between Opposing Counsel and Experts

The oft-debated discovery issue of whether counsel’s communications with an expert retained to testify at trial is protected work product has been analyzed by several state and federal courts, to varying results.  Some courts have found the material to be not protected work product, see, e.h,  Intermedics, Inc. v. Ben­trix, Inc., 139 F.R.D. 384 (N.D. Cal. 1991), while other courts have come to a diametrically opposed conclusion on essentially identical fact,  see, e.g., Rail Intermodal Specialists v. General Elec., 154 F.R.D. 218 (N.D. Iowa 1994) (discovery of counsel’s letters to experts were barred by the work product doctrine). 


One leading case is Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3rd Cir. 1984), in which that court ruled that the federal rules permitting discovery of opinions of expert witnesses and the facts upon which those opinions were based was still subject to the work product doctrine restricting disclosure of attor­ney work product containing mental impressions and legal theories, where memorandum, containing the protected work product, were shown to the expert witness who was scheduled to testify. The Third Circuit reasoned as follows:


[W]here the same document contains both facts and legal theories of the attorney, the adversary party is entitled to discovery of the facts. It would represent a retreat from the philosophy underlying the Federal Rules of Civil Procedure if a party could shield facts from disclosure by the expe­dient of combining them or interlacing them with core work product. Where such combinations exist, it will be necessary to redact the document so that full disclosure is made of facts presented to the expert and considered in formulating his or her opin­ion, while protection is accorded the legal theories and the attorney-expert dialectic. The advisory Committee Notes also rec­ognize this need. They state, “In enforcing [the Rule 26(b)(3) protection of lawyers’ mental impressions and legal theories], the courts will sometimes find it necessary to order disclosure of a document but with portions deleted.” Id. at 595.


Many states have helped clarify the rule via legislation.  For example, Virginia Code § 8.01-401.1 expressly provides that an expert testifying at trial may “be required to disclose the underlying facts or data on cross-exam­ination” upon which his opinion is premised. There­fore, to the extent that any communication from counsel to its expert contains a statement of facts, then that material is discoverable, because the expert may be cross-examined on that subject at trial.  Therefore, if an email from defense counsel to its expert contains any statement of facts, then the letter must be edited and pro­vided to counsel, with any portions of the letter that contain “mental impressions, conclusions, opinions, or legal theories” redacted or otherwise omitted.   If the parties dispute the necessity of certain reactions,  counsel can send a copy of the original letter under seal to the Court to be compared to the edited copy provided to the other party’s counsel.

As always, counsel is advised to attempt good-faith resolution of any discovery dispute with their adversary before seeking judicial intervention, as an attorney, like a personal injury lawyer in Arlington, VA from a firm like The Law Offices of Ryan, LLC.  However, if such efforts to not succeed, counsel should carefully review relevant case law and statutory authority in determining the contours of any protections afforded correspondence between counsel and retained experts.