Changes to Expert Discovery May Place Communications With Non-Reporting Experts at Risk

Communications between non-reporting experts and attorneys are at risk of being subjected to discovery. Under United States v. Kovel and its progeny, the privilege covers experts that are retained “in confidence for the purpose of obtaining legal advice from the lawyer.” There are, however, carve-outs for testifying expert witnesses which require certain disclosures to the other side. Rule 26(b)(3)(4)(c) of the Federal Rules of Civil Procedure specifically protect communications between those experts that submit expert reports and the attorney, with enumerated exceptions. But that provision makes no mention of protections for non-reporting expert witnesses. One District Judge seized upon this omission and ordered an attorney to produce all documents and communications that the non-reporting expert “generated, saw, read, reviewed, and/or reflected upon” which would include communications with counsel. If this reasoning is adopted by other Courts it could alter the analysis of whether to characterize an expert witness as non-reporting. In any event, attorneys should be careful about what communications it shares with non-reporting experts as they may well be discoverable.

What is a “Non-Reporting” Expert?

Under Rule 26 of the Federal Rules of Civil Procedure there are two types of experts: (1) reporting experts and (2) non-reporting experts. The discovery that the other side is entitled to is governed in part by this classification.

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Discovery related to reporting experts is covered by FRCP 26(a)(2)(B), which requires the expert to provide a written expert report. Experts are required to submit expert reports if they are “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” These witnesses are required to “submit a detailed report containing a complete statement of all opinions the witness will express, any exhibits that will be used to summarize or support those opinions, the witness’s qualifications, a list of other cases in which the witness has testified as an expert at trial or by deposition, and a statement of the witness’s compensation.” “Examples of reporting experts are causation experts, outside accountants retained to calculate damages or business valuations, and engineers retained for testimony regarding patented technology.”

Non-reporting, testifying experts are typically those that were “not specially retained to provide expert testimony, but rather would testify on the basis of percipient knowledge.” See Luminara Worldwide, LLC v. RAZ Imps., Inc., No. 15-cv-03028, 2016 U.S. Dist. LEXIS 158183, at *4 (D. Minn. Nov. 15, 2016). In the first instance, “[a] witness designated as an expert under Rule 26(a)(2)(C) need only submit a statement regarding (i) the subject matter on which the witness is expected to testify and (ii) a summary of the facts and opinions to which the witness is expected to testify.” These witnesses will typically testify “both as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705.” The advisory committee notes which revised Rule 26 in 2010 provide some examples and specifically state that “frequent examples include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony.” Other examples of non-reporting experts are “a party’s own accountants . . . and business owners.”

Expert witnesses’ communications with their attorneys are typically privileged because of Kovel and its progeny. However, there is a necessary limited waiver of this privilege in order to comply with the mandatory expert witness report requirements for reporting witnesses and the disclosure requirements for non-reporting experts. There are explicit privilege protections for reporting expert witnesses under Federal Rule 26(b)(3)(4)(C):

“(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

1. relate to compensation for the expert’s study or testimony;
2. identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
3. identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.”

Of interest is that 26(b)(3)(4)(C) only refers to protecting “communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B).” It does not make any mention of protections for non-reporting witnesses, and due to its silence in this regard, at least one District Court found that rather expansive disclosure of communications between counsel and the non-reporting expert was appropriate. See Luminara Worldwide, LLC v. RAZ Imps., Inc., No. 15-cv-03028, 2016 U.S. Dist. LEXIS 158183, at *4 (D. Minn. Nov. 15, 2016).

The Luminara Decision and What it Could Mean for Non-Reporting Expert Discovery

In a patent dispute, the defendant sought disclosure of a host of information from the plaintiff’s non-reporting expert witness. The witness was a “named inventor on five of the asserted patents underlying this action, and is one of the founding members of [the plaintiff’s] predecessor-in-interest.” See id., at *2. He also is a “paid consultant to [the plaintiff], providing expertise ranging from design and development of new products to development of patent strategy.” Id., at *3.

During discovery, the plaintiff asserted privilege and objected to document requests and repeatedly instructed the expert not to answer deposition questions aimed at communications between the expert witness and plaintiff’s counsel. Id. Defendant first requested that the expert submit a report, but the Court denied the request holding that the expert was appropriately classified as a non-reporting expert because he was “not specially retained to provide expert testimony, but rather would testify on the basis of percipient knowledge.” Id., at *4. The defendants then argued that it is entitled to the requested materials and the Magistrate Judge ruled in the defendants’ favor holding that “courts generally held that all documents and information disclosed to any testifying expert in connection with his testimony, including any communications with attorneys, were discoverable by the opposing party” and further held that the 2010 amendments to the Federal Rules of Civil Procedure confirmed this analysis. Id., at *5.

The Court noted that “while Rule 26(b)(4)(C) provides explicit protection for some communications between a party’s attorney and reporting experts, it is silent as to whether communications with a non-reporting expert are similarly protected.” Id., at *6, 6 n. 3 (citing FRCP 26(b)(4)(C))(“protect[ing] communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, [except in three enumerated circumstances]”). The Magistrate judge gave plaintiff a choice to either produce “any documents and information considered by . . . [the expert] in connection with his expert testimony, including communications with attorneys” or withdraw the expert’s “designation as a non-reporting expert witness.” Id., at *6-7. The plaintiff then provided certain communications and documents and the defendant objected to the scope of the production arguing that the plaintiff interpreted “considered” far too narrowly. The Court agreed.

The Court held that the term “considered” is “to be interpreted broadly” and that the inquiry is not merely “whether the expert actually relied on or used the documents and information” but rather “what matters is simply that [the expert] was exposed to these materials in the first place.” Id., at *13-14 (internal citations omitted). The plaintiff made somewhat of a last ditch effort to re-designate this expert as a reporting expert, but the Court rejected this request since the plaintiff “has had the opportunity for years to designate [the expert] as a reporting expert and chose not to do so.” Id., at *15. Ultimately, rather than produce those communications, the plaintiff elected to withdraw the expert.

It should be noted that it doesn’t seem as if any other Court has cited Luminara for precedent, and it may well be somewhat of an outlier. However, if other Courts follow suit it could have a significant impact on the strategic choice as to whether to identify an expert as a reporting or non-reporting expert. In any event, if a litigant decides to characterize a witness as a non-reporting expert it should be very careful with its communications with the expert because it could be required to produce all of the materials that the expert “was exposed to.” See id., at * 14. It is important too that the determination of the expert’s classification be made “prior to engaging in substantive communication with your expert” because the communications could ultimately be discoverable.

If Luminara is any indication, non-reporting expert discovery could become more expansive and attorneys must take special care in their communications with this type of expert. If the non-reporting expert is going to be subject to these sort of discovery obligations, litigants may well decide that it is best to err on the side of having the expert file an expert report and benefit from the discovery protections under FRCP 26(b)(4)(C). This ruling could cause attorneys to be more cautious with emails and other documents it provides to non-reporting experts. As a practical matter, for the time being, some attorneys may opt for picking up the phone or having in-person meetings when communicating with non-reporting experts rather than risk communicating with emails and written documents unless it is necessary to do so.