Posted by Larry A. RothsteinJul 26, 20210 Comments

I presented the following paper at the 2019 Pearlman Conference in Woodinville, WA.  It was in conjunction with a panel discussion I chaired under the same title.  In future posts, I will discuss the use of expert witnesses in more practical context.

  1. Work Product Privilege Protection for Consultants and Experts Under California Law

The identities and opinions of experts retained by counsel solely as a consultant to help evaluate the case or prepare for trial and not as a trial witness are entitled to qualified work product protection as well as derivative materials created by such consultants such as diagrams, reports and communications to the lawyer.  Williamson v. Sup. Ct. (Shell Oil Company) (1978) 21 Cal.3d 829, 834, 148 Cal.Rptr. 39, 42.

This includes not even having to disclose the identity of the expert.  This protection encourages experts to serve as consultants knowing that they will not be subject to subpoenas, depositions, etc.  Williamson, supra.

Attorney opinions are absolutely protected by the work product privilege.  C.C.P. §2018.030(a).  However, all other work product, including consultants' reports, etc. are subject to qualified work product protection.  The Court may order disclosure if it determines that “denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.”  C.C.P. §2018.030(b).

Reports previously rendered in a consultant capacity do not automatically lose work product protection even after the consultant has been identified as a testifying expert in an expert witness disclosure statement.  Reports rendered to assist the lawyer in such matters of preparation of pleadings, discovery, manner of proof and cross-examination of opposing expert witnesses remain protected because they are often “reflective of the mental processes of the lawyer under whose direction the expert works.”  National Steel Products Company v. Sup. Ct. (Rosen) (1985) 164 Cal.App.3d 476, 489, 210 Cal.Rptr. 535, 543.  The advice and the report given by the expert in a consulting capacity on trial preparation, etc. remains subject to conditional work product protection.  However, the trial court may conduct an in camera review to separate that from other discoverable information.  DeLuca v. State Fish Company, Inc. (2013) 217 Cal.App.4th 671, 690, 158 Cal.Rptr.3d 761, 775.

However, as stated above, disclosure may be ordered where denial of discovery would “unfairly prejudice” the party or will result in an “injustice.” C.C.P. 2018.030(b)

Here the exception could well swallow up the rule.  If the expert's prior report(s) as a consultant contains information that could be used for potential impeachment purposes, “a court [must] weigh carefully the power of impeachment as a valuable tool in the process of truth ascertainment against the benefits of protecting the privilege of ‘work product.'”  Jasper Construction, Inc. v. Foothill Junior College District of Santa Clara County (1979) 91 Cal.App.3d 1, 17, 153 Cal.Rptr. 767, 776. (Emphasis added) (Disapproved on other grounds in Los Angeles Unified School District v. Great American Insurance Company (2010) 49 Cal.4th 939, 753, 112 Cal.Rptr.3d 230, 240. 

It is therefore of paramount importance that, notwithstanding the qualified privilege, a written report of the then-consultant/now-expert witness must be such that the expert does not contradict his or her prior statements made in the capacity of consultant.

It is likely that one's opponent will try to claim "potential impeachment" in order to get at the expert's earlier "advisory" reports.

“If the lawyer instructs the expert whom they plan to call at trial only to report orally, then there is no report to turn over. However, opposing counsel is likely to argue that the standard of care for any responsible expert would have been to prepare a written report.

My view is that written reports from consultants which do not contain opinions are often

valuable. For example, in a construction defect case, the consultant can prepare a scope of repairs and a cost estimate without assigning culpability. Those opinions are not likely to change if the consultant is later designated as an expert. In any event, it is always paramount for the lawyer to closely circumscribe precisely what he or she wants and expects from their consultant or expert. I have seen on too many occasions where the consultant/expert, if left to his or her own devices, will venture far a stream from the issues in the case or needs of the client and its counsel.

The work product protection for a consultant ceases once "it becomes reasonably certain the expert will give his or her professional opinion as a witness on a material matter in dispute."  This is often long before the person is actually designated as an expert in the case which occurs fifty (50) days prior to trial. C.C.P. §2034.230(b); Deluca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 689-690; 158 Cal.Rptr.3d 761, 775. The point where it is reasonably certain the expert will testify is a "bright line" with work product protection before but not after. Williamson v. Sup. Ct. (Shell Oil Co.) (1978) 21 Cal.App. 829, 834-835; 148 Cal.Rptr. 39, 42-43.

Sharing with others information otherwise entitled to qualified work product protection does not waive the privilege unless the circumstances are inconsistent with safeguarding the privacy of the attorney's trial preparation. Raytheon Co. v. Sup. Ct. (Renault) (1989) 208 Cal.App.3d 683, 689, 256 Cal.Rptr. 425, 429.

Work product protection is not lost by the attorney delivering copies of consulting reports to experts retained by the attorney or in discussions relating to the retention of the expert, even if the expert is not subsequently retained. Shadow Traffic Network v. Sup. Ct. (Metro Traffic Control, Inc.) (1994) 24 Cal.App.4th 1067, 1079; 29 Cal.Rptr.2d 693, 699.

Where parties collaborate on creating or obtaining work product, waiver of the protection by one of them does not bar the other from asserting it. All holders of the work product privilege must consent to waiver of the privilege. Arminta v. Sup. Ct. (James Jones Co.) (2002) 101 Cal.App.4th 525, 532, 124 Cal.Rptr.2d 273, 278. One party's willingness to waive the work product privilege for test results by an expert jointly retained with a co-party does not affect the co-party's right to prevent disclosure of the results.

To rule on claims of work product protection, it is often necessary for the trial judge to conduct an in camera inspection of the report(s) in question and make the following determinations:

  • If the report reflects in whole or in part the attorney's impressions, conclusions, opinions or theories, that information is absolutely protected and cannot even be reviewed in camera. Evidence Code §915(a).
  • As to those portions not absolutely privileged, was the report made by an expert

          designated as a trial witness (that is, fully discoverable) or was it merely advisory       to the attorney. If only advisory, it is conditionally privileged and cannot be    discovered absent "unfair prejudice," to the party seeking discovery.

  • Third, as to advisory reports, does good cause for discovery outweigh the policies supporting work product protection? That is, could the report serve as possible impeachment of the expert's testimony at trial. National Steel Products Co. v. Sup. Ct. (Rosen) 1985 164 Cal.App.3d 476, 489-492.
  1. Disclosure Requirements Under Fed. Rules of Evidence 702, 703 and 705

Unless otherwise provided by court order or stipulation, each party must disclose the identity of expert witnesses whom it expects to use at trial to present evidence and, as to certain of these experts, a written report, prepared and signed by the expert, containing a complete statement of all opinions to be expressed and the basis and reasons, and certain other information. FRCP 26(a)(2)(A), (B).

As to experts not required to submit a written report, a disclosure of the subject matter on which the expert will testify and a summary of the facts or opinions to which the expert is expected to testify is required. FRCP 26(a)(2)(C)

Each expert who may be called to give opinion evidence at trial under FRE 702, 703 or 705 must be identified. Disclosure is not limited to experts who will be called on direct examination. Those who may be called to rebut or impeach opposing experts must also be identified. However, experts who will be called solely for rebuttal purposes may be identified within 30 days after the opposing party's disclosures. FRCP 26(a)(2)(D)(ii)

Parties are generally not required to identify experts acting solely as consultants (i.e. non-testifying experts) or to disclose their reports. Their reports and the facts or opinions known to them are discoverable only under “exceptional circumstances.” FRCP 26(b)(4)(D)(ii)

A single individual may serve as both a testifying expert and a non-testifying consultant, but discovery is permitted for everything except materials generated or considered by the individual solely in his or her role as a non-testifying consultant. Sara Lee Corp. v. Kraft Foods, Inc. (ND IL 2011) 273 FRD 416, 419-420

Any ambiguity regarding the capacity of the individual is resolved in favor of the party seeking discovery. In Re: Comm'l. Money Ctr., Inc. Equipment Lease Litig. (ND OH 2008) 248 FRD 532, 538

The test for discoverability is whether the documents reviewed or generated by the expert are germane to the subject matter on which the expert will testify. South Yuba River Citizens League v. National Marine Fisheries Service (ED CA 2009) 257 FRD 607, 614

Designating experts as trial witnesses and discovery of their reports waives any work product protection for their opinions. Therefore, even if the party designating the expert decides not to call the expert to testify, any other party may do so. “The practical effect of a Rule 26(b)(2) designation is . . . to bring an expert and his report within the universe of material that is discoverable by all parties and, generally, admissible at trial. Penn Nat'l Ins. Co. v. HNI Corp. (MD PA 2007) 245 F.3d 190, 193

However, drafts of any expert witness report or disclosure required under Rule 26(a)(2) are protected as attorney work product “regardless of the form in which the draft is recorded” (i.e. , oral, written, electronic or otherwise). FRCP 26(b)(4)(B)

If the expert has prepared notes or drafts documents reflecting communications with persons other than attorneys (i.e. communications with other experts) there is no work product protection under FRCP 26(b)(4)(B) Republic of Ecuador v. Mackay (9th Cir. 2014) 742 F.3d 860, 870-871.

Communications in any form between a party's attorney and an expert who is required to provide an expert witness report  (i.e., retained or specially employed experts) under Rule 26(a)(2)(B) are protected as qualified attorney work product subject to certain exceptions. FRCP 26(b)(4) Nevertheless, it makes sense to be cautious in communications (particularly written communications) with testifying experts.

Certain attorney expert communications are not protected as attorney work product:

  • The amount an expert witness is being paid for his/her services is discoverable because it may suggest bias. FRCP 26(b)(4)(C)(i)
  • Compensation for the study and testimony provided and any additional benefit to the expert (e.g. promise of further work in the event of a successful result) and extends to compensation for work done by any person or organization associated with the expert. Adv. Comm. Note to 2010 amendment to FRCP 26(b)(4)

Thus, it is fair game to ask a testifying expert by whom and how he/she is being paid (e.g. whether fees are secured by a lien on recovery, etc.) Similarly, the expert may be asked about income from other sources of employment.

There is no work product protection for communications identifying facts or data provided by the attorney and relied upon by the expert in forming the opinions he/she expresses. FRCP 26(b)(4)(C)(iii) However, discovery is allowed only as to communications identifying the facts or data provided by counsel, not communications regarding their relevancy or importance. Adv. Comm. Note to 2010 Amendment to FRCP 26(b)(4)

There is no work product protection for communications identifying assumptions made by the attorney and relied upon by the expert in forming the opinions expressed.  For example, an attorney tells the expert to assume the truth of certain testimony or evidence or the correctness of another expert's conclusions. FRCP 26(b)(4)(C)(iii)

The identification requirement contained in FRCP 26(a)(2)(A) applies to a broader range of experts than does the written report requirement in rule 26 (a)(2)(B). While all persons giving expert testimony must be identified, a party must provide full and signed written reports only for experts who are:

  • Retained or especially employed to provide expert testimony at trial of the action, or
  • Employed by a party and whose duties regularly involve giving expert testimony (so-called “in-house” experts). Rule 26(a)(2)(B)

“Retained” or “specially employed” experts are those engaged by a party to provide expert opinion testimony on its behalf at trial. These experts must provide a signed expert witness report under Rule 26(a)(2)(B).

Unretained experts are persons who may be asked their expert opinion testimony at trial but who are not engaged or employed by a party to testify. These include:

  • Treating physicians
  • Police officers
  • Government investigators
  • General contractors
  • Auto accident investigators
  • Employees who do not regularly provide expert testimony

In contrast to retained experts who have no prior connection to the facts given rise to the litigation, unretained experts are those persons with recipient knowledge who happen to be an expert. The unretained expert is “an actor with regard to the occurrences from which the tapestry of the lawsuit was woven,” with the opinion testimony rising not from enlistment as an expert but from “ground-level involvement in the events giving rise to the litigation.” Downey v. Bob's Discount Furniture Holdings, Inc. (1st Cir. 2011) 633 F.3d 1, 6

Even as to unretained experts, parties have an obligation to (a) identify them as testifying experts under Rule 26(a)(2)(A) and (b) disclose the subject matter of their expected testimony together with the summary of the facts and opinions to which they will testify. This is the so-called “expert report light,” which is prepared by counsel (not the unretained expert) and involves considerably less than the detailed reports required from the retained experts.

  1. Requirements For Experts' Reports

The report must be prepared by the expert – not the attorney for the party making the disclosure. FRCP 26(a)(2)(B) However, it is not improper for the attorney to provide assistance to the expert in preparing the report. Marek v. Moore (D KS 1997) 171 FRD 298, 302

The report must be in writing and signed by the expert. FRCP 26(a)(2)(B)

Each report must contain all of the following:

  • A complete statement of all opinions to be expressed at trial and the bases for each opinion;
  • The facts or data considered in forming the opinion;
  • Any exhibits to be used as a summary of or support for the opinions;
  • The qualifications of the expert;
  • All publications authored by the expert within the preceding 10 years;
  • A listing of other cases in which the witness testified as an expert (at trial or deposition) during the past 4 years;
  • The compensation to be paid to the expert.

Note that the disclosure is not limited to matters supporting the expert's opinion, it must include facts or data considered by the witness informing his/her opinion. This may include matters harmful to the party's position.

Note further that an expert may be asked during deposition about testimony given in other litigation beyond the 4 year period specified in FRCP 26(a)(2)(B). Adv. Comm. Notes to 1993 Amendments to FRCP 26(a)(2)(B)(v).

For unretained experts (such as police officers or treating physicians), counsel must disclose the subject matter of the expected expert testimony and summarize in writing the facts and opinions to be attested by the experts who are not required to file expert reports. FRCP 26(a)(2)(C)

The disclosures and reports described above are to be made when the court directs. Absent a court order or stipulation, such disclosures are due 90 days before trial (or the day the case is to be ready for trial). FRCP 26(a)(2)(D)(i)

If the expert evidence is intended solely to rebut evidence of another's expert, the disclosures are due within 30 days after the other party's disclosure. FRCP 26(a)(2)(D)(ii)

The discovery requirements described above do not apply to experts engaged solely to consult with the party or counsel and who are not expected to testify at trial. The opposing party may not, by interrogatories or deposition, discover facts known or opinions held by such a consultant absent exceptional circumstances. FRCP 26(b)(4)(D)

However, one such “exceptional circumstance” applies where a person was originally designated as a testifying expert but later re-designated as non-testifying.

  1. Expert opinion under FRE702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786

The critical distinction between lay testimony, admissible under FRE 701 and expert testimony, admissible under FRE 702, is that lay testimony must be based on firsthand knowledge, while expert testimony may be based on hypothetical facts and hearsay so long as it has “a reliable basis in the knowledge and experience of the expert's discipline.”  Daubert, supra, 509 US at 592; 113 S.Ct. at 2796

Daubert and its progeny as well as the FRE assigned to the trial judge the task of insuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. The test for reliability is the soundness of the expert's methodology, not the accuracy of the conclusions. Reliable testimony must also be helpful, and the trial judge may exclude testimony that falls short of achieving either end. Stilwell v. Smith & Nephew, Inc. (9th Cir. 2007) 482 F.3d 1187, 1192

The trial court's general gate keeping role established under FRE702 and Daubert applies not only to testimony based on scientific knowledge but also to testimony based on technical and other specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael (1999) 526 U.S. 137, 147-148, 119 S.Ct. 1167, 1174.

In all cases where expert testimony is offered, the trial judge must find that the testimony is “properly grounded, well reasoned and not speculative before it can be admitted.” CFRE 702, Adv. Comm. Notes (2000)

The author wishes to acknowledge Weil & Brown, Civ. Pro. Before Trial (TRG 2019) (as to California materials referenced herein) and Schwarzer, Tashima  & Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial (TRG 2018) (as to the Federal materials.)