Concept
Testifying Experts
Work product, privilege, and protective orders
Testifying Experts
Work product shields what a lawyer prepares for the case, but it does not shield the opinions a party plans to put before the fact-finder. Under Rule 26(b)(4)(A), any person identified as an expert whose opinions may be presented at trial may be deposed, and the text asks the requester for no showing of need or hardship.1 The work-product exception for substantial need and undue hardship is itself written “subject to Rule 26(b)(4),” which marks the expert provisions as a separate source of discovery rights.2
The difference follows from what a testifying expert is for. Most work product stays in counsel’s file and never reaches the fact-finder, so a requester must justify any intrusion into it. A testifying expert’s opinion, by definition, may be presented at trial, and an opponent who cannot learn how that opinion was formed has no meaningful way to test it on cross-examination. The deposition gives the opponent that chance as a matter of course, and the report requirement controls its timing.
Two questions follow. The first concerns the deposition right itself: what it covers and when a party may use it. The second concerns a conflict with the preceding section. Opinion work product receives the strongest protection the doctrine offers, yet a lawyer who sends such material to a testifying expert has placed counsel’s thinking in the hands of a witness who will be examined on the basis of her opinion. Does the material keep its protection once the expert has it?
Deposing the Expert
Rule 26(b)(4)(A) attaches two conditions to the deposition, one about status and one about timing: “A party may depose any person who has been identified as an expert whose opinions may be presented at trial,” and if Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.3 Identification alone satisfies the status condition, which sets this right apart from the work-product exception in the earlier sections. The timing condition makes the deposition wait for the report whenever one is required.
The report that controls the timing comes from Rule 26(a)(2)(B). Unless the parties stipulate or the court orders otherwise, the disclosure must be accompanied by a written report, prepared and signed by the witness, when the witness is retained or specially employed to provide expert testimony in the case or is an employee whose duties regularly involve giving expert testimony.4 The report must contain a complete statement of all opinions the witness will express and the basis and reasons for them.5 It must also account for the data or other information the expert considered in forming those opinions, a feature that matters once lawyers have shared their own work product with the expert and that the next subsection takes up.6
The sequence follows from what a deposition is for. An examiner who arrives without knowing the expert’s opinions must spend the deposition learning what the expert intends to say. An examiner who arrives holding a signed, complete statement of the opinions and their reasons can spend the same hours testing those reasons, locating weak points in the basis, and preparing the cross-examination for trial.
The 1993 amendments built expert discovery in this order. In Gall v. Jamison, which read the parallel Colorado and federal rules together, the Colorado Supreme Court explained that the amendments added the mandatory disclosures of Rule 26(a)(2) and rewrote Rule 26(b)(4)(A) to permit the deposition. It called that combination a striking departure from the prior approach, because the amended rule eliminates the need for interrogatories to learn the substance of what an expert will say at trial.7 The change also widened what the opponent can see, because the expert must now disclose the material considered and not only the facts known and the opinions held.8
The default is that the report accompanies the disclosure, but the text yields to a stipulation or a court order, which is how a gap like the one in that scene can arise.9 The waiting rule also depends on whether a report is required at all. A witness who is neither retained or specially employed to give expert testimony nor an employee whose duties regularly involve giving it falls outside the report requirement. The waiting condition then has nothing to wait for, and the deposition may go forward once the person has been identified as an expert whose opinions may be presented at trial.10 An exam stem that supplies an expert, a deposition notice, and a date therefore calls for two questions: whether a report is required of this witness, and if so, whether it has been provided.
The deposition right carries a cost, and Rule 26(b)(4)(E)(i) assigns it to the questioner. The party seeking discovery must pay the expert a reasonable fee for time spent responding to discovery under Rule 26(b)(4)(A) or (D).11 The payer surprises students who assume that the party that retained the expert covers every expense of the testimony. The allocation has a practical logic. Preparing for and sitting through a deposition consumes hours of the expert’s professional time, and if the examiner paid nothing, the retaining party would subsidize the other side’s cross-examination while the examiner had no financial reason to keep the questioning short.
A different provision governs experts retained only in preparing for trial and not expected to testify. Discovery from them requires a showing of exceptional circumstances under which it is impracticable to obtain the facts or opinions on the same subject by other means,12 and the questioner must also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.13
The deposition right also sharpens a conflict with the work-product rule. Gall observed that the general protection for work product is tempered by Rule 26(b)(4), and that the tension becomes real when counsel has shared mental impressions or legal theories with a testifying expert and the opponent then seeks everything the expert considered in forming an opinion.14 Whether work product that a lawyer hands to the expert keeps its protection is the question for the next subsection.
Materials the Expert Considers
Work-product protection reaches well beyond what a lawyer writes personally. Rule 26(b)(3)(A) covers materials prepared by or for a party or its representative, including the party’s attorney, consultant, surety, indemnitor, insurer, or agent,17 and the protection extends to what the attorney’s agents and consultants prepare, because attorneys must rely on investigators and other agents in preparing for trial.18 Lawyers often send a retained testifying expert case documents, a letter describing the dispute, or their own analysis. Does the work-product bar still shield those materials once she has them?
The answer begins with a qualifier in the rule. Rule 26(b)(3)(A) lets a requester reach protected work product on a showing of need, but it makes that exception “subject to Rule 26(b)(4),” the provision that governs experts, and Rule 26(b)(4)(A) lets a party depose any identified testifying expert without a showing of need or hardship.19 Gall held that the rule allows discovery of attorney work product shared with a testifying expert, provided the expert considers it in forming an opinion.20 Colorado’s rules track the federal text on this point, so the court treated federal decisions as persuasive.21 On an exam, present Gall as persuasive state authority for the majority approach and not as a binding federal holding.
The reasoning starts from a tension older than the current rules. Before 1993, Rule 26(b)(4) allowed interrogatories asking for the substance of an expert’s facts and opinions, and its ambiguous wording, read beside the work-product rule in Rule 26(b)(3), left unclear whether opinion work product reviewed by a testifying expert could be reached.22 Courts sorted into two camps. A protection-oriented approach allowed discovery of such work product only on a showing of substantial need, while a discovery-oriented approach allowed wide discovery of work product a lawyer had given to an expert.23 The leading discovery-oriented case, Boring v. Keller, involved a letter from defense counsel to the experts that offered general suggestions and counsel’s opinions about issues common in medical malpractice cases, which the experts had used in preparing their opinions.24
The 1993 amendments were meant in part to end that disagreement, and they did so by changing what an expert must disclose.25 Rule 26(a)(2) now requires the expert to disclose the basis for her opinion before she is deposed, and the advisory committee’s note said that, given this obligation, litigants should no longer be able to argue that materials furnished to their experts for use in forming their opinions are privileged or protected, whether or not the expert ultimately relied on them.26 After the amendments most jurisdictions treated the tension as resolved in favor of full discovery, so work product disclosed to a testifying expert generally loses its protected status.27
A small minority of courts kept protecting all attorney work product even after it reached a testifying expert, relying on language in Hickman and the long history of protecting work product.28 Haworth, Inc. v. Herman Miller, Inc., the leading minority decision, read the amendments to require disclosure of only the factual materials that informed the expert’s opinion, so opinion work product kept its protection. The court found the amended text insufficiently clear, and the interest in effective cross-examination too weak, to override Hickman.29 The Third Circuit’s reasoning in Bogosian v. Gulf Oil Corp., repeated in In re Cendant Corp. Securities Litigation, shows the textual form of the argument. The court read the proviso making Rule 26(b)(3) subject to Rule 26(b)(4) to mean that expert-prepared material is discoverable only on the terms of Rule 26(b)(4), and it left untouched the sentence of Rule 26(b)(3) that protects mental impressions and legal theories.30 The Cendant discussion arose from an argument about a litigation consultant and the provision for experts who will not testify, so it is best read as the protective reading of the proviso and not as a ruling on testifying experts under the amended disclosure rules.31
The majority rejected the minority reading for three reasons, each drawn from the structure of the rules:
- The minority reading leaves the 1993 amendments with nothing to do, because courts before the amendments already ordered disclosure of the facts given to an expert even when they shielded opinion work product, and the doctrine has always protected counsel’s opinion of the facts and never the facts themselves.32
- Rule 26(a)(2) requires an expert to disclose the basis for her opinion before she is deposed, and the language making Rule 26(b)(3) subject to Rule 26(b)(4) indicates that work-product protection does not cover materials used in forming the expert’s opinion.33
- The advisory committee’s note draws no line between fact and opinion work product and gives opinion work product no special protection, which is why courts describe the amended rule as a bright-line rule favoring production of any information the expert considers.34
Cross-examination points the same way. A lawyer who retains an expert decides which facts the expert sees and may supply a theory along with them, so the opponent can test how far the opinion reflects the expert’s own analysis, and how far the lawyer’s version of the case, only by seeing what the expert was given.35 Without that access, a lawyer could hand a testifying expert a detailed road map for the desired testimony, and the opponent could never cross-examine on its effect. A bright-line rule also keeps the litigation cheaper to run, because the alternative requires trial courts to review every expert communication in camera, which breeds discovery battles and drains judicial resources.36
The disclosure rule also leaves the purposes of work-product protection largely intact. Hickman defined those purposes: a lawyer must be free to assemble information, sift the relevant from the irrelevant facts, prepare legal theories, and plan strategy without undue and needless interference.37 Handing material to a testifying expert advances none of those tasks, on Gall’s reasoning. It either tells the expert what counsel believes the relevant facts are or steers her toward a favorable opinion, and a lawyer who needs to think freely can consult non-testifying experts in confidence.38 A lawyer who wants to keep work product from the other side can give the testifying expert all the relevant facts instead of selected facts and the lawyer’s own conclusions, because the rule warns in advance that what the expert receives is discoverable.
The word considered sets how far the disclosure reaches, and it reaches further than a requirement that the expert have relied on the material. An expert considers documents or materials when she reads or reviews them before or in connection with forming her opinion, even if she does not rely upon them or ultimately rejects them.39 Reliance requires dependence on the information, while consideration requires only that the expert took the material into account, and the drafters of the 1993 amendments rejected a version of the expert-report provision that would have required identifying the data the expert relied upon.40 The choice follows from the cross-examination rationale, because documents an expert considered and rejected may be as useful to the cross-examiner as those the expert relied on, or more so.41 They show what the opposing lawyer put in front of the expert and what the expert set aside.
Gall applied that holding to counsel’s communications with Dr. King, whom the plaintiffs had retained as an expert witness.42 The trial court had ordered the plaintiffs to produce the requested materials, and the Colorado Supreme Court held that they must comply, provided that Dr. King considered them.43 That proviso sets the other pole of the rule: the holding reaches only what the expert considered, and whatever counsel kept from her stays protected. Gall construed the rules as they stood after the 1993 amendments, so it explains the majority approach without speaking to any later change in the text.
An exam stem on this topic usually supplies a detail meant to tempt a protective answer, and each such detail has a settled effect. A statement that the expert did not rely on the lawyer’s letter gives the letter no protection, because consideration is enough. A statement that the letter sets out the lawyer’s legal theories gives it no protection under the majority approach, which draws no line between fact and opinion work product once the material reaches a testifying expert. A statement that the lawyer’s memorandum stayed in the file places the memorandum outside the rule altogether, because the expert never considered it.