Choosing the Right Expert Means Asking the Right Questions

Court Requires Disclosure of Memorandum Discussing Expert’s Methodology

Written on Monday, July 6th, 2020 by T.C. Kelly
Filed under: Expert Opinions, ExpertWitness, Working with Experts

In most cases, a retained expert must prepare a report that states the expert’s opinions, as well as the facts and reasoning that supports those opinions. Yet expert reports do not appear out of the blue. Experts may labor over the report for weeks, treating them as works in progress that evolve over time.

The finished draft of an expert report must be disclosed, as well as certain underlying data. A continuing issue in the law is whether other documents, including prior drafts and communications with an attorney about the report, must also be disclosed. A federal magistrate recently ruled that a memorandum about methodology that an expert wrote for his own use and shared with an attorney is subject to disclosure.

The Work Product Doctrine and Expert Reports

Law students who struggle to stay awake during dry lectures about civil procedure will eventually encounter the work product doctrine. While simple on its face, the work product doctrine compounds the confusion surrounding the obligation to comply with discovery requests.

Under the federal rules, parties may not discover materials that were prepared by or for an attorney in preparation for litigation. However, the rule must be read in light of other discovery rules, including the obligation to disclose reports prepared by experts who will testify at trial. Those reports are plainly prepared for attorneys to assist in litigation, but the reports were both mandated and made discoverable by a 1993 amendment to Rule 26.

The 1993 amendment also allowed discovery of “data or other information” upon which the expert relied in forming opinions. Courts issued confusing and contradictory rulings about whether communications between an attorney and an expert were discoverable as “other information.” Many courts also required disclosure of preliminary drafts of the report in addition to the final report.

Lawyers responded by instructing experts not to produce drafts prior to the final report, for fear that the drafts would include statements that contradict statements made in the final report. Since reports typically evolve over time as experts refine their thinking or incorporate new data, experts expressed frustration that lawyers did not understand how they work.

The rules committee eventually concluded that disclosure of attorney interactions with experts inhibited “collaborative interaction” with experts because attorneys feared disclosure of “their most sensitive and confidential case analyses.” Experts also complained that limiting their communications with the attorneys who hired them impaired their ability to perform high quality work.

Rule 26 was modified in 2010 to address those concerns. The amended rule requires disclosure of “facts or data considered by the witness” in forming expert opinions and “assumptions” that the attorney who retained the expert communicated to the expert if the expert relied upon those assumptions. The changes were meant to exclude disclosure of communications with lawyers that provided theories of the case or the lawyer’s mental impressions. The new rule also provided that the work product privilege protects prior drafts of an expert report from disclosure.

Expert’s Memorandum in Hernandez Lawsuit

Angel Hernandez, a Major League umpire, sued the Commissioner of Baseball for national origin discrimination. Hernandez complained that, despite his seniority, he was not promoted to crew chief and was never selected to umpire the World Series.

Hernandez identified Gregory Baxter as an expert witness and disclosed Baxter’s expert report. The Commissioner took Baxter’s deposition.

When asked if he had reviewed any documents in preparation for the deposition, Baxter testified that he had reviewed a memorandum that he wrote to himself but did not include in the expert report. Baxter testified that the memorandum described his methodology for deciding whether comments about Hernandez were positive or negative and for determining whether statements made in Hernandez’s year-end review were supported by Umpire Evaluation Reports.

Baxter prepared the memorandum weeks after he finished the expert report. He testified that he wrote it because he expected to be deposed about his methodology. He also testified that Hernandez’ attorney did not ask him to prepare the memorandum.

Baxter based the memorandum on notes that he made to himself while preparing the report. He destroyed those notes after he finished the memorandum.

At some point, Baxter gave the Memorandum a title, referring to it as a “supplement” to the “expert report methodology.” He sent the memorandum to Hernandez’ attorney with the subject line “Proposed Supplement to Baxter’s Expert Report.”

The Commissioner moved to compel production of the memorandum. Hernandez resisted on the ground that the memorandum was work product and not discoverable.

Magistrate’s Decision

The memorandum was not an earlier draft of the expert report because it was created after the expert report was finished. Hernandez argued that it was nevertheless a draft of a new or supplemental report.

The magistrate decided that the work product privilege applies to drafts of expert reports that are “required” by Rule 26. No supplemental report was required in this case, so the privilege did not apply to the memorandum. In addition, since no part of the memorandum was actually included in the required report, the memorandum cannot be regarded as a draft of the report that was submitted.

The court also noted that the work product privilege is designed to protect an attorney’s mental impressions, conclusions, opinions, or legal theories, not those of the expert. Since Hernandez’ counsel did not ask Baxter to prepare the memorandum, it did not qualify as attorney work product.

The court rejected the argument that the memorandum was a privileged communication between expert and attorney. While Baxter’s affidavit stated that the memorandum was prepared in anticipation of discussing methodology with Hernandez’s attorney, it was not created as a communication to an attorney.

The fact that Baxter sent the memorandum to an attorney did not “change its character at inception.” To hold otherwise would result in any document becoming privileged merely because the document was sent to an attorney.

Lessons Learned

The court emphasized that an expert’s “notes to himself do not qualify for protection” as work product. Notes are not drafts of a report unless they are intended for later inclusion in the report. Nor are notes made by an expert for the expert’s own purposes protected as communications to an attorney even if they are eventually sent to an attorney.

Experts should be cautioned that if they prepare notes for their own purposes, other than as drafts of portions of an expert report, those notes are likely discoverable. Experts should therefore be careful about preparing notes that they would not want a party in the case to review.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.