Federal evidence rule 26 requires disclosure of all information fed to testifying experts by attorneys, but what "all" meant had been something of an open issue; specifically, the privacy of attorney opinion work product.

Meeting in Honolulu, on Aug. 7, the American Bar Association's House of Delegates voted 207-137 recommending amending rule 26 to protect expert draft reports and communications between attorneys and their experts. The ABA had worried over the extent of rule 26 because its application had varied in decisions around the country, sometimes protecting opinion work product, more often not. The ABA forwarded its recommendation to the Supreme Court's advisory Committee on Civil Rules.

But 10 days later, barring amendment, the ABA's recommendation was shot down.

In its August 17th ruling, the Sixth Circuit Court of Appeals, in Regional Airport Authority Of Louisville and Jefferson County v. LFG (06a0302p.06), replayed the history of rule 26, concluding with open season on full disclosure on the care and feeding of expert witnesses.

Prior to 1993, there was general agreement that Federal Rule of Civil Procedure 26 excluded categorically the discovery of attorney opinion work product, even when provided to testifying experts. See, e.g., Toledo Edison Co. v. G A Techs., Inc., 847 F.2d 335, 339-41 (6th Cir. 1988); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 595 (3d Cir. 1984).

In 1993, however, Rule 26 was amended to require parties to submit expert reports for all testifying experts. See Fed. R. Civ. P. 26(a)(2)(A) (“[A] party shall disclose to other parties the identity of any person who may be used at trial to present evidence . . . .”); see also Fed. R. Civ. P. 26 advisory committee note, 1993 amendments (noting the addition of paragraphs (a)(1)-(4) imposes “a duty to disclose”). Subsection (a)(2) now states:

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

Since the amendments, two lines of cases have formed regarding protections of work-product associated with those experts. The first holds that attorney work product is not discoverable merely because it has been shared with a testifying expert. See Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 292-96 (W.D. Mich. 1995); see also Smith v. Transducer Tech., Inc., 197 F.R.D. 260, 261-62 (D.V.I. 2000); Krisa v. Equitable Life Assurance Soc’y, 196 F.R.D. 254, 259-61 (M.D. Pa. 2000); Estate of Moore v. R.J. Reynolds Tobacco Co., 194 F.R.D. 659, 663-64 (S.D. Iowa 2000). 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. See In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001); Karn v. Ingersoll Rand, 168 F.R.D. 633, 637-41 (N.D. Ind. 1996); Gall v. Jamison (In re Gall), 44 P.3d 233, 238-39 (Colo. 2002); cf. Fid. Nat’l Title Ins. Co. of N.Y. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 751 (7th Cir. 2005) (noting that Rule 26(a)(2)(B) requires a party to disclose all data that a testifying expert “considered”). The issue is one of first impression in this Court.

The first line–the so-called Haworth line–represents the minority view. The Haworth court felt that the amendments to Rule 26 did not change the pre-amendment rule that attorney opinion work product disclosures to experts were privileged from discovery. Relying largely on the Supreme Court’s decision in Hickman, the Haworth court stated, “For the high privilege accorded attorney opinion work product not to apply would require clear and unambiguous language in a statute.” Haworth, 162 F.R.D. at 295. Finding no such language in Rule 26, the court followed preamendment Sixth Circuit precedent that attorney opinion work product is absolutely privileged. Id. (citing Toledo Edison, 847 F.2d at 340).

The contrary view–adopted by a majority of courts that have considered the issue, including the only court of appeals to have done so–relies mostly on statements in the Advisory Committee Notes in holding that Rule 26 as amended creates a bright-line rule requiring disclosure of all information provided to testifying experts. See In re Pioneer, 238 F.3d at 1375.

We agree with the district court and the majority view that Rule 26 now requires disclosure of all information provided to testifying experts. A plain reading of subsections (a)(2) and (b) makes clear that (b) applies to the discovery of information provided to experts generally, while (a)(2) applies to the disclosure of information provided to testifying experts specifically.

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. Therefore, we now join the “overwhelming majority” of courts, Herman v. Marine Midland Bank, 207 F.R.D. 26, 29 (W.D.N.Y. 2002), in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.

Following Alza, many patents will be under the gun of § 103(a), a gun shot by expert witnesses, who chalk outline the body of "one skilled in the art". How the bullets were loaded in that gun could be decisive in whether the aim is true, or misfires.