Witness Preparation: Attorney Client and Work Product...

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Witness Preparation: Attorney‐Client Witness Preparation: Attorney Client Privilege and Work Product ChallengesReconciling the Demands of FRCP 26(b) and FRE 612(2) When Preparing Witnesses for Deposition and Trial

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, JULY 27, 2011

Today’s faculty features:

Robert L. Wise, Partner, Bowman and Brooke, Richmond, Va.

Steven C. Bennett, Partner, Jones Day, New York

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Witness Preparation: Attorney-ClientWitness Preparation: Attorney-ClientPrivilege And Work Product Challenges:

FRCP 26 And Its Implications

July 2011

Strafford Publications

Steven C. Bennett Jones Day –New York

[email protected]

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P t B k dPresenter Background

Partner Jones Day (New York office) Partner, Jones Day (New York office)

Commercial Litigation (20 years)

Member, New York State Bar Association Corporate Counsel Committee

Adj P f N Y k L S h l H f Adjunct Professor, New York Law School, Hofstra

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Di l iDisclaimers

The views expressed are solely those of the presenter The views expressed are solely those of the presenter, and should not be attributed to the presenter’s firm or its clients.

This presentation does not constitute legal advice; nor does it constitute solicitation of an attorney/client

l ti hirelationship.

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A dAgenda

Privilege and work product protection under Privilege and work product protection underFRCP 26

Protecting core work product from disclosure under Protecting core work product from disclosure under FRE 612

Balancing rulesBalancing rules

Best practices

R f References

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Overview

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General Elements To Establish Attorney-Client Privilege

Legal advice soughtLegal advice sought

From professional legal advisor in that capacity

Communications made for that purposeCommunications made for that purpose

In confidence

By the clientBy the client

At the client’s instance permanently protected

Unless the privilege is waivedU ess e p v ege s w ved

United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950)

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Expert May Be Covered Byp y yAttorney-Client Privilege

Employee of client Employee of client

“Translator”

FRCP 26(b)(4)(B): exclusion of discovery, except:– Exceptional circumstances– Impracticable to obtain facts by other means

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W k P d t D t iWork Product Doctrine

Protects information created in anticipation ofProtects information created in anticipation of litigation– Generally, attorney’s mental processes– Specifically, memoranda, analyses, etc. that

attorney createsC l t lt t d b l Can apply to consultants engaged by counsel

Unlike attorney-client privilege, both the attorney and the client can claim itthe client can claim it

Fed. R. Civ. P. 26(b)(3)

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Expert May Be Covered p yBy Work Product

FRCP 26(b)(3)(a): materials created by or for a FRCP 26(b)(3)(a): materials created by or for a party, including attorney or consultant

Anticipation of litigation (aid in preparation) Anticipation of litigation (aid in preparation)

Not merely business advice

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Consulting Experts

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R Of F tiRange Of Functions

Document organization/analysis Document organization/analysis

Claim/defense preparation

Assist counsel with discovery/strategy

Assist counsel with negotiation, mediation, litigation

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N T diti l E tNon-Traditional Expert

Media consultant Media consultant

Jury consultant

Graphics artist

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P t ti l P bl APotential Problem Areas

Unretained expert Unretained expert– Conflicts

Unhelpful opinion– Unhelpful opinion No privilege for identity of unretained experts

Consulting expert for one purpose; testifying expert for other purpose

T i h i i (f / i i i ) Treating physician (fact/opinion mixture)– Cannot create privilege after-the-fact

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Thompson v. Haskell Co.,p ,1994 WL 597252 (M.D. Fla. 1994)

Claim for sexual harassment Claim for sexual harassment

Alleged depression

Plaintiff sees doctor; doctor creates report

Defense wants report to show mental state at time of fi ifiring

Held: report must be produced– No other source of comparable information

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Chiquita Int’l Ltd. v. M/V Bolero Reefer,q ,1994 WL 263603 (S.D.N.Y. 1994)

Failure in shipment of bananas Failure in shipment of bananas

Expert surveys condition of cargo

Held: Expert has performed more than fact gathering– Photos of cargo not discoverable, as defendant

h d h thad own photos

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Testifying Experts

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Attorney Communications With Expert y pMay Be Part Of What Expert “Considered” Explanation of the case/what attorney wants Explanation of the case/what attorney wants

Documents selected for review

Comments on expert report

Terms of engagement/limits/fees

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Documents Provided To Expert Lose Privilege

Advisory Committee Notes: Documents provided Advisory Committee Notes: Documents provided are not privileged, even if expert does not rely on them

Documents provided are subject to discovery. In re Omeprazole Patent Lit., 2005 WL 818821 (S.D.N.Y. 2005)2005)

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Documents Must Relate To Expert’s Work

Define by subject matter of report See American Define by subject matter of report. See American S.S. Owners v. Alcoa S.S. Co., 2006 WL 212376 (S.D.N.Y. 2006)

Must bear some “probative relationship” to expert’s opinion. See Oneida, Ltd. V. United States, 43 Fed. Cl 611 (F d Cl 1999)Cl. 611 (Fed. Cl. 1999)

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P t ti l P bl APotential Problem Areas

Expert begins as non-testifying consultant; then is Expert begins as non-testifying consultant; then is asked to testify

Expert operates in firm that provides both testifying Expert operates in firm that provides both testifying and consulting service (for the same client)

Testifying expert relies on information from non-Testifying expert relies on information from nontestifying expert

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Att + Cli t + E tAttorney + Client + Expert

If expert is testifying communication may not be If expert is testifying, communication may not be privileged

Beware testifying expert involvement in strategy Beware testifying expert involvement in strategy

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Shooker v. Superior Court,p ,4 Cal. Rptr. 3d 334 (Cal. App. 2003)

Plaintiff designates himself as an expert in the case Plaintiff designates himself as an expert in the case

Trial court orders discovery regarding conversations with counselwith counsel

Plaintiff withdraws designation

H ld d i i l d i i il Held: designation alone does not waive privilege

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S li ti B E tSpoliation By Expert

FRCP 26(a)(2)(B) requires disclosure of information FRCP 26(a)(2)(B) requires disclosure of information “considered,” not only what ultimately forms basis for opinion

“Adverse inference” or other sanction where expert fails to preserve/produce information considered. S T i I C U it d St t 204 F R D 277See Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001)

E t d t t i f Fid lit Expert need not retain every scrap of paper. Fidelity Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745 (7th Cir. 2005)

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( )

FRCP 26Amendments

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A d d R l 26 (2010)Amended Rule 26 (2010)

Add/clarify disclosure requirements for experts for Add/clarify disclosure requirements for experts for whom no report is required

“Limit” disclosure to “facts and data” Limit disclosure to facts and data

Some work product protection for drafts and attorney-expert communicationsattorney expert communications

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Purposes Rule 26(a) amendments were proposed because:

– Many lawyers agree to not exchange drafts and communications in particular casescommunications in particular cases

– Access to drafts and communications often increase the expense of discovery, with minimal return (if any)

– The need to avoid reducing communications (and drafts) to writing complicates the attorney-expert working relationship and can increase cost

– The need for consulting experts increased with the introduction of the current rule in 1993, in order to insulate testifying experts, which creates inequities for clients that cannot afford p , qtwo experts

– Attorneys are less willing to use experts who do not have prior testifying experience, for fear their attempts to train such experttestifying experience, for fear their attempts to train such expert to testify will be misconstrued

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T t ChText Changes

26(a)(2)(B)(ii) 26(a)(2)(B)(ii)– Old Rule: “data or other information considered

by the witness in forming [all opinions]”y g [ p ]– Revised Rule: “facts or data considered by the

witness in forming [all opinions]”– Comment to revised rule makes clear change

intended to avoid disclosure of drafts and at least tt t i tisome attorney-expert communications

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Text Changesg 26(b)(4)(B)

– Draft reports and disclosures are protected asDraft reports and disclosures are protected as work product

– Applies to any testifying expert

26(b)(4)(C)– Communications between expert and attorney are

protected as work product– Applies only to experts required to provide a

reportreport– Three exceptions: compensation, facts

considered, and assumptions, p

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Text Changesg 26(a)(2)(C)

– Provides for disclosure of certain information forProvides for disclosure of certain information for experts not subject to report requirements Subject matter of evidence under 702, 703, or 705j Summary of facts and opinions

– Comment suggests that disclosure need not include facts unrelated to expert opinions

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P ti l I li tiPractical Implications

New rules only apply to federal cases New rules only apply to federal cases.

New rules will probably be applied retroactively.

Consider stipulating with opposing counsel.

Only communications with Rule 26(a)(2)(B) experts ill i k d iwill receive work product protection;

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Attorney communications with testifying experts who Attorney communications with testifying experts who do not prepare a report are discoverable.

Work product protection is not absolute Work product protection is not absolute.

Rule 612(b) of the Rules of Evidence still applies.

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Segregate your non-confidential communications Segregate your non-confidential communications with testifying experts.

Failure to properly disclose a non Rule 26(a)(2)(B) Failure to properly disclose a non Rule 26(a)(2)(B) testifying expert may result in exclusion of the expert’s testimony.

The new federal rules do not change attorneys’ ethical duties.

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Cases Interpreting New RulesDongguk Univ. v. Yale Univ., 2011 WL 1935865 (D. Conn.May 19, 2011) (hand-written notes still discoverable).Sara Lee Corp. v. Kraft Foods, Inc., __ F.R.D. __, 2011 WL 1311900 (N.D. III. April 1, 2011) (denying motion to compel in part by applying new “facts or data” language and revised rule).p y pp y g g g )

Daugherty v. Amer. Express Co., 2011 WL 1106744 (W.D. Ky. March 23, 2011) (applying amendments to case filed in 2008 as “j t d ti l”)“just and practical”).

CIVIX-DDI, LLC v. Metro. Regional Inform. Systems, Inc., __ F R D 2011 WL 922611 (E D Va March 8 2011) (amendedF.R.D. __, 2011 WL 922611 (E.D. Va. March 8, 2011) (amended rules apply to case filed on August 30, 2010).Graco v. PMC Global, Inc., 2011 WL 666056 (D. N.J. Feb. 14, 2011) (analyzing revised rule).

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Cases Interpreting New RulesCases Interpreting New Rules

Nat’l Western Life Ins. Co. v. Western Nat’l Life Ins. Co., 2011 WL 840976 (W.D. Tex. March 3, 2011) (limiting discovery under new rule).Crabbs v Wal Mart Stores Inc 2011 WL 499141 (S D IowaCrabbs v. Wal-Mart Stores, Inc., 2011 WL 499141 (S.D. Iowa Feb. 4, 2011 (applying 26(A)(2)(C) to treating physicians).Estate of Allison v. Vince Scoggins, P.A., 2011 WL 650383 (W.D. state of llison v. Vince Scoggins, . ., 0 W 650383 (W. .N.C. Feb. 10, 2011) (applying revised rule and requiring a privilege log).

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Best Practices

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C i tiCommunication

Discuss role of expertDiscuss role of expert Discuss process:

– Information exchange– Information exchange– Report drafting– DiscoveryDiscovery

Establish policy re: notes/communication with counsel

Beware “experienced” experts who don’t follow directions

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Maintain Protection OfConsulting Expert

Route directions through counsel Route directions through counsel

Mark documents “privileged”

Keep track for privilege review/log

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Maintain Independence ofpTestifying Experts

Expert should follow standard methods for inquiry Expert should follow standard methods for inquiry

Attorney may describe available information, but expert chooses what to reviewexpert chooses what to review

Expert must be willing to defend opinion

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R fReferences

Bennett Expert Discovery: What Is Discoverable?Bennett, Expert Discovery: What Is Discoverable?, N.L.J., Dec. 11, 2006

Bennett Explore Potential Of Expert Witness WorkBennett, Explore Potential Of Expert Witness Work, 18:5 CPA Man. Partner Rep. 5

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[email protected]

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Witness Preparation: Attorney-Client p yPrivilege and Work Product Challenges:

The Role of FRE 612 in Protecting Work ProductProtecting Work Product

Robert L. WiseBowman and Brooke LLP

[email protected]

Firm ProfileBowman and Brooke LLP is a nationally recognized trial firm with one of theBowman and Brooke LLP is a nationally recognized trial firm with one of thelargest product liability practices in the country. The firm’s 185 attorneysdefend a variety of corporate clients, including many Fortune 500 andinternationally-based companies, in widely publicized catastrophic injury andinternationally based companies, in widely publicized catastrophic injury andwrongful death matters, and in other complex litigation throughout all 50states. Bowman and Brooke’s lawyers regularly represent their clients and trycases in courthouses across the United States.

Complementing our national product liability defense practice, Bowman andBrooke provides well-established litigation practice groups in commercial,intellectual property environmental construction consumer warranty andintellectual property, environmental, construction, consumer warranty andhealthcare litigation. The firm has offices in Minneapolis, Phoenix, Detroit,San Jose, Los Angeles, Richmond, Columbia, Dallas and Austin.

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Presenter Background Co-Managing Partner (Richmond office) Co-Managing Partner (Richmond office).

Founding member of firm-wide Appellate and Trial Support Practice GroupSupport Practice Group.

Practice focused on appeals and advance motions support, product liability litigation, and intellectualsupport, product liability litigation, and intellectual property litigation.

Member of DRI's Appellate Advocacy and Diversity pp y yCommittees and director of the Virginia Association of Defense Attorneys.

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Issue:

The selection and compilation ofd t t thdocuments as a means to prepare thewitness—is it work product?

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O i i W k P d tOpinion Work-Product

The selection and compilation by counsel of documents The selection and compilation by counsel of documentsfrom a larger set of documents is opinion work-product.Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.), cert. denied,474 U S 903 (1985) (selection and compilation are474 U.S. 903 (1985) (selection and compilation are"highly-protected . . . opinion work-product"); see also Inre Allen, 106 F.3d 582, 608 (4th Cir. 1997); Shelton v.A M t C 805 F 2d 1323 1329 (8th Ci 1986)Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986);but see In re San Juan duPont Plaza Hotel FireLitigation, 859 F.2d 1007, 1018 (1st Cir. 1988) (findingattorney compilation unprotected).

See also 7 James Wm. Moore et al., Moore's FederalPractice § 26 70[2][b] n 15 (3d ed 2008)Practice § 26.70[2][b] n.15 (3d. ed. 2008).

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O i i W k P d tOpinion Work-Product Attorney compilations provide a window into counsel's mental

impressions about the case and which documents counselimpressions about the case and which documents counselthinks are most relevant to a topic. Sporck, 759 F.2d at 316.

The Sporck court reasoned:

"In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case Indeed in a case such as thisunderstanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research. There can be no doubt that at least in the firstresearch. There can be no doubt that at least in the first instance the binders were entitled to protection as work product." Id ( ti J J li I R th C 93 F R DId. (quoting James Julian, Inc. v. Raytheon Corp., 93 F.R.D.138, 144 (D. Del. 1982)).

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S f th P t tiScope of the Protection

Thus Fed R Civ P 26 is always a first step but Thus, Fed. R. Civ. P. 26 is always a first step, butits protection is not absolute.

Protected materials including those within a Protected materials, including those within acompilation used to help prepare a witness fordeposition, may be discoverable if they are put top , y y pa "testimonial use." See, e.g., Nutramax Labs.,Inc. v. Twin Labs, Inc., 183 F.R.D. 458, 463 (D.Md 1998)Md. 1998).

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R l t P ti f F d R E id 612Relevant Portions of Fed. R. Evid. 612

if a witness uses a writing to refresh memory for the purpose. . . if a witness uses a writing to refresh memory for the purposeof testifying, either—. . . .(2) Before testifying, if the court in its discretion determines it isnecessary in the interests of justice,an adverse party is entitled to have the writing produced at thean adverse party is entitled to have the writing produced at thehearing, to inspect it, to cross-examine the witness thereon, and tointroduce in evidence those portions which relate to the testimonyf h iof the witness.

Fed. R. Evid. 612 (emphases added).

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S f th U f R l 612 S dScope of the Use of Rule 612 – Sword

Generally the "before testifying" portion of Rule 612(2) Generally, the before testifying portion of Rule 612(2)applies to depositions. Nutramax, 183 F.R.D. at 467(applying Rule 612 to the context of depositions); but seeOmaha Pub Power Dist v Foster Wheeler Corp 109Omaha Pub. Power Dist. v. Foster Wheeler Corp., 109F.R.D. 615, 616-17 (D. Neb. 1986) (commenting thatRule 612 does not apply to depositions).

Testimony from recollection refreshed by a review of adocument before the deposition can be deemed a"testimonial use" under Rule 612 See e g Nutramaxtestimonial use under Rule 612. See, e.g., Nutramax,183 F.R.D. at 467.

Therefore, any privilege or protection that might, y p g p gotherwise apply may be waived by such testimonial use.Id. 53

S f th U f R l 612 Shi ldScope of the Use of Rule 612 – Shield

However Rule 612 does not provide an automatic right to However, Rule 612 does not provide an automatic right to all documents reviewed in preparation for the corporate representative deposition.

Instead, while the compilation retains its protected status, there may be an exception to the privilege when certaindocuments are put to a "testimonial use." Nutramax, 183documents are put to a testimonial use. Nutramax, 183 F.R.D. at 467.

But the party seeking production of such individual documents must first lay a proper foundation. Id. at 468.

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R l 612 F d ti l R i tRule 612 Foundational Requirements

Access will only be given to "those writings which Access will only be given to those writings whichmay fairly be said in part to have an impact upon thetestimony of the witness." Id. (internal quotations

i d) l U d S Sh ff ld 55 F 2domitted); see also United States v. Sheffield, 55 F.2d341, 343 (8th Cir. 1995) ("Rule 612 is not a vehiclefor a plenary search for contradicting or rebuttingp y g gevidence that may be in a file but rather is a means toreawaken recollection of the witness to the witness'spast perception about a writing ")past perception about a writing.").

Rule 612 cannot be used "as a pretext for wholesaleexploration of an opposing party's files " Nutramaxexploration of an opposing party s files. Nutramax,183 F.R.D. at 468.

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Deposing counsel must first show that the witness Deposing counsel must first show that the witnessused the particular document to refresh his or hermemory on a specific, relevant topic.

Second, deposing counsel must show that the witnessactually used the document for the purpose oft tif itestifying.

If the requesting party cannot lay this two-stepf d ti th d t d t b d dfoundation, the documents need not be produced.Nutramax, 183 F.R.D. at 468.

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If the two-step foundation can be met there is still another If the two step foundation can be met, there is still anotherelement that must be addressed. Audiotext Commc'nsNetwork, Inc. v. US Telecom, Inc., 164 F.R.D. 250, 252(D Kan 1996)(D. Kan 1996).

Rule 612(2) provides that the deposing party must alsoshow, and the court must find, that the "interests ofshow, and the court must find, that the interests ofjustice" support production of the document used torefresh recollection. Nutramax, 183 F.R.D. at 468.

This element requires a "balancing test to weigh thepolicies underlying the work product doctrine against theneed for disclosure to promote effective cross-pexamination and impeachment." Id.

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Rule 612 Foundational Requirementsq("Interests of Justice")

The Nutramax court provided nine illustrative, but notp ,exhaustive, factors for a court to consider:

(1) status of the witness—for example, (7) the extent to which thefact, expert, or corporate representative;

(2) nature of the issue in dispute;

(3) h h k l

documents contain “pure” attorneywork product;

(8) whether the documents had(3) when the events took place;

(4) when the documents were reviewed;

(5) the number of documents reviewed;

(8) whether the documents hadbeen previously disclosed; and

(9) whether there are legitimatedi d t ti f(5) the number of documents reviewed;

(6) whether the witness prepared the documents reviewed;

concerns regarding destruction ofthe documents.

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Id. at 469–70.

Rule 612 Foundational Requirementsq("Interests of Justice")

Applying this analysis on a case-by-case basis,the Nutramax court ultimately found that thei t t f j ti f d d i d ti finterests of justice favored ordering production ofsome of the individual documents.

"[T]here is greater need to know what materialswere reviewed by expert and designee witnessesin preparation for deposition since the substancein preparation for deposition since the substanceof their testimony may be based on sourcesbeyond personal knowledge." Id. at 469.y p g

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P ti l U d D fPractical Uses and Defenses

The issue can arise several ways for example:The issue can arise several ways, for example:

Sometimes, the deposition notice will contain abl k t t f ll d t i d iblanket request for all documents reviewed inpreparation for the deposition; or

The deposing party may, as in Sporck, requestproduction of all preparation materials at theoutset of the deposition prior to laying anyoutset of the deposition, prior to laying anyfoundation or asking any substantive questions.

Under the Sporck/Nutramax line of cases, eitherapproach is improper. 60


In a jurisdiction following Sporck any pre-deposition In a jurisdiction following Sporck, any pre-depositiondocument request for the compilation of materialsused in preparation should be objected to as askingf d k d ibl i h ifor protected work product, possibly with a motionfor protective order as well.

H it i i t t t di ti i h b t However, it is important to distinguish betweendisclosure of the individual compiled preparationmaterials themselves, and disclosure of the contents,of a compilation as a compilation.

This strategy was used in Frazier v. Ford MotorgyCompany, No. 4:05CV04077, 2008 WL 4809130(W.D. Ark. Oct. 31, 2008). 61


The Frazier court sustained the objection to the The Frazier court sustained the objection to therequested blanket production of all preparation materials,as it was observed that the production would requireFord to tell plaintiff's lawyers which documents of thoseFord to tell plaintiff s lawyers which documents, of thosealready produced, Ford's lawyers deem significant.

The court reasoned:The court reasoned:

"While it is the task of Ford’s lawyers to preparetheir witnesses to testify, it is the task of theplaintiff’s lawyers to select the documents aboutwhich they wish to inquire. The rules do notcontemplate that Ford’s lawyers must assist thep yplaintiff’s lawyers in selecting documents aboutwhich to inquire during a deposition." 62


Likewise in a Sporck jurisdiction a comprehensive Likewise, in a Sporck jurisdiction, a comprehensiverequest during the deposition itself without a properfoundation first being laid should likewise be met withan objectionan objection.

In Sporck, 759 F.2d at 313-14, plaintiff's counselattempted to elicit the identification and production of allattempted to elicit the identification and production of alldocuments examined or referred to by Charles Sporck inpreparation for his deposition.

Defense counsel objected and plaintiff moved to compel.

The Third Circuit noted that the request was premature The Third Circuit noted that the request was premature.

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The Sporck court noted: The Sporck court noted:

"In seeking identification of all documents reviewedby petitioner prior to asking petitioner any questionsy p p g p y qconcerning the subject matter of the deposition,respondent’s counsel failed to establish either thatpetitioner relied on any documents in giving hispetitioner relied on any documents in giving histestimony, or that those documents influenced histestimony. Without eliciting that testimony, thereexisted no basis for asking petitioner the source ofexisted no basis for asking petitioner the source ofthat testimony."

Id. at 318 (internal citation omitted; emphasis added).( ; p )

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P ti l U d D fPractical Uses and Defenses Check all local rules and the law of the jurisdiction.

Any premature attempt to use Rule 612 as a means todefeat privilege must be met with an objection.

The party seeking such materials must then seek to laythe proper foundation for each document requested.

Specific questioning, implicating particular documents,is required. Sporck, 759 F.2d at 318; see also StoneContainer Corp. v. Arkwright, No. 93 C 6626, 1995 WLContainer Corp. v. Arkwright, No. 93 C 6626, 1995 WL88902 (N.D. Ill. Feb. 28, 1995).

If deposing counsel fails to lay the foundation properly,If deposing counsel fails to lay the foundation properly,defending counsel should instruct the witness not toanswer. See Fed. R. Civ. P. 30(c)(2). 65

Ethi l C id tiEthical Considerations

Fed R Civ P 11/Fed R Civ P 37 Fed. R. Civ. P. 11/Fed. R. Civ. P. 37

Model Rules of Prof'l Conduct R. 3.1 (1983)

Model Rules of Prof'l Conduct R. 3.4 (1983)

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[email protected]

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