Witness Preparation: Attorney-Client Privilege and...

Witness Preparation: Attorney-Client Privilege

and Work Product Challenges Reconciling the Demands of FRCP 26(b) and FRE 612(2)

When Preparing Witnesses for Deposition and Trial

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TUESDAY, JULY 24, 2012

Presenting a live 90-minute webinar with interactive Q&A

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

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

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5 NYI-4385553v1

Witness Preparation: Attorney-Client

Privilege And Work Product Challenges:

FRCP 26 And Its Implications

July 2012

Strafford Publications

Steven C. Bennett

Jones Day –New York

[email protected]

6 NYI-4385553v1

Presenter Background

Partner, Jones Day (New York office)

Commercial Litigation (20 years)

Member, New York State Bar Association Corporate

Counsel Committee

Adjunct Professor, New York Law School, Hofstra

7 NYI-4385553v1

Disclaimers

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

relationship.

8 NYI-4385553v1

Agenda

Privilege and work product protection under

FRCP 26

Protecting core work product from disclosure under

FRE 612

Balancing rules

Best practices

References

9 NYI-4385553v1

Overview

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General Elements To Establish

Attorney-Client Privilege

Legal advice sought

From professional legal advisor in that capacity

Communications made for that purpose

In confidence

By the client

At the client’s instance permanently protected

Unless the privilege is waived

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

Mass. 1950)

11 NYI-4385553v1

Expert May Be Covered By

Attorney-Client Privilege

Employee of client

“Translator”

FRCP 26(b)(4)(B): exclusion of discovery, except:

– Exceptional circumstances

– Impracticable to obtain facts by other means

12 NYI-4385553v1

Work Product Doctrine

Protects information created in anticipation of litigation

– Generally, attorney’s mental processes

– Specifically, memoranda, analyses, etc. that attorney creates

Can apply to consultants engaged by counsel

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

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

13 NYI-4385553v1

Expert May Be Covered

By Work Product

FRCP 26(b)(3)(a): materials created by or for a

party, including attorney or consultant

Anticipation of litigation (aid in preparation)

Not merely business advice

Consulting Experts

14 NYI-4385553v1

15 NYI-4385553v1

Range Of Functions

Document organization/analysis

Claim/defense preparation

Assist counsel with discovery/strategy

Assist counsel with negotiation, mediation, litigation

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Non-Traditional Expert

Media consultant

Jury consultant

Graphics artist

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Potential Problem Areas

Unretained expert

– Conflicts

– Unhelpful opinion

No privilege for identity of unretained experts

Consulting expert for one purpose; testifying expert

for other purpose

Treating physician (fact/opinion mixture)

– Cannot create privilege after-the-fact

18 NYI-4385553v1

Thompson v. Haskell Co.,

1994 WL 597252 (M.D. Fla. 1994)

Claim for sexual harassment

Alleged depression

Plaintiff sees doctor; doctor creates report

Defense wants report to show mental state at time of

firing

Held: report must be produced

– No other source of comparable information

19 NYI-4385553v1

Chiquita Int’l Ltd. v. M/V Bolero Reefer,

1994 WL 263603 (S.D.N.Y. 1994)

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

had own photos

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Testifying Experts

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Attorney Communications With Expert

May Be Part Of What Expert “Considered”

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

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)

23 NYI-4385553v1

Documents Must Relate

To Expert’s Work

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 (Fed. Cl. 1999)

24 NYI-4385553v1

Potential Problem Areas

Expert begins as non-testifying consultant; then is

asked to testify

Expert operates in firm that provides both testifying

and consulting service (for the same client)

Testifying expert relies on information from non-

testifying expert

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Attorney + Client + Expert

If expert is testifying, communication may not be

privileged

Beware testifying expert involvement in strategy

26 NYI-4385553v1

Shooker v. Superior Court,

4 Cal. Rptr. 3d 334 (Cal. App. 2003)

Plaintiff designates himself as an expert in the case

Trial court orders discovery regarding conversations

with counsel

Plaintiff withdraws designation

Held: designation alone does not waive privilege

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Spoliation By Expert

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.

See Trigon Ins. Co. v. United States, 204 F.R.D. 277

(E.D. Va. 2001)

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)

FRCP 26

Amendments

28 NYI-4385553v1

Amended Rule 26 (2010)

Add/clarify disclosure requirements for experts for

whom no report is required

“Limit” disclosure to “facts and data”

Some work product protection for drafts and

attorney-expert communications

29 NYI-4385553v1

Purposes Rule 26(a) amendments were proposed because:

– Many lawyers agree to not exchange drafts and

communications 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

two experts

– Attorneys are less willing to use experts who do not have prior

testifying experience, for fear their attempts to train such expert

to testify will be misconstrued

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Text Changes

26(a)(2)(B)(ii)

– Old Rule: “data or other information considered

by the witness in forming [all opinions]”

– 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

some attorney-expert communications

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Text Changes

26(b)(4)(B)

– Draft 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

report

– Three exceptions: compensation, facts

considered, and assumptions

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Text Changes

26(a)(2)(C)

– Provides for disclosure of certain information for

experts not subject to report requirements

Subject matter of evidence under 702, 703, or 705

Summary of facts and opinions

– Comment suggests that disclosure need not

include facts unrelated to expert opinions

33 NYI-4385553v1

Practical Implications

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

will receive work product protection;

34 NYI-4385553v1


Attorney communications with testifying experts who

do not prepare a report are discoverable.

Work product protection is not absolute.

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

35 NYI-4385553v1


Segregate your non-confidential communications

with testifying experts.

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.

36 NYI-4385553v1

Cases Interpreting New Rules Dongguk 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).

Daugherty v. Amer. Express Co., 2011 WL 1106744 (W.D. Ky.

March 23, 2011) (applying amendments to case filed in 2008 as

“just and practical”).

CIVIX-DDI, LLC v. Metro. Regional Inform. Systems, Inc., __

F.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).

37 NYI-4385553v1

Cases 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. 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.

N.C. Feb. 10, 2011) (applying revised rule and requiring a

privilege log).

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Best Practices

39 NYI-4385553v1 39 NYI-4385553v1

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Communication

Discuss role of expert

Discuss process:

– Information exchange

– Report drafting

– Discovery

Establish policy re: notes/communication with counsel

Beware “experienced” experts who don’t follow directions

41 NYI-4385553v1

Maintain Protection Of

Consulting Expert

Route directions through counsel

Mark documents “privileged”

Keep track for privilege review/log

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Maintain Independence of

Testifying Experts

Expert should follow standard methods for inquiry

Attorney may describe available information, but

expert chooses what to review

Expert must be willing to defend opinion

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References

Bennett, Expert Discovery: What Is Discoverable?,

N.L.J., Dec. 11, 2006

Bennett, Explore Potential Of Expert Witness Work,

18:5 CPA Man. Partner Rep. 5

44 NYI-4385553v1

Questions?

[email protected]

Witness Preparation: Attorney-Client

Privilege and Work Product Challenges:

The Role of FRE 612 in

Protecting Work Product

Robert L. Wise

Bowman and Brooke LLP

[email protected]

45

Firm Profile

Bowman and Brooke LLP is a nationally recognized trial firm with one of the

largest product liability practices in the country. The firm’s 185 attorneys

defend a variety of corporate clients, including many Fortune 500 and

internationally-based companies, in widely publicized catastrophic injury and

wrongful death matters, and in other complex litigation throughout all 50

states. Bowman and Brooke’s lawyers regularly represent their clients and try

cases in courthouses across the United States.

Complementing our national product liability defense practice, Bowman and

Brooke provides well-established litigation practice groups in commercial,

intellectual property, environmental, construction, consumer warranty and

healthcare litigation. The firm has offices in Minneapolis, Phoenix, Detroit,

San Jose, Los Angeles, Richmond, Columbia, Dallas and Austin.

46

Presenter Background

47

Co-Managing Partner (Richmond office).

Founding member of firm-wide Appellate and Trial

Support Practice Group.

Focuses on appeals and advance motions support,

class-action defense, product liability litigation, and

intellectual property litigation.

Member of DRI’s Appellate Advocacy and Diversity

Committees and director of the Virginia Association

of Defense Attorneys.

Issue

The selection and compilation of

documents as a means to prepare the

witness—is it work product?

48

Opinion Work-Product

The selection and compilation by counsel of documents

from 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 are

“highly-protected . . . opinion work-product”); see also In

re Allen, 106 F.3d 582, 608 (4th Cir. 1997); Shelton v.

Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986);

but see In re San Juan duPont Plaza Hotel Fire

Litigation, 859 F.2d 1007, 1018 (1st Cir. 1988) (finding

attorney compilation unprotected).

See also 7 James Wm. Moore et al., Moore’s Federal

Practice § 26.70[2][b] n.15 (3d. ed. 2008).

49

Opinion Work-Product

Attorney compilations provide a window into counsel's mental

impressions about the case and which documents counsel

thinks 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 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 first instance the binders were entitled to

protection as work product.”

Id. (quoting James Julian, Inc. v. Raytheon Corp., 93 F.R.D.

138, 144 (D. Del. 1982)).

50

Scope of the Protection

Thus, Fed. R. Civ. P. 26 is always a first step, but

its protection is not absolute.

Protected materials, including those within a

compilation used to help prepare a witness for

deposition, may be discoverable if they are put to

a “testimonial use.” See, e.g., Nutramax Labs.,

Inc. v. Twin Labs, Inc., 183 F.R.D. 458, 463 (D.

Md. 1998).

51

Relevant Portions of Fed. R. Evid. 612

(a) Scope. This rule gives an adverse party certain options when a

witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to

have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. . . .

an adverse party is entitled to have the writing produced at the

hearing, to inspect it, to cross-examine the witness about it, and to

introduce in evidence any portion that relates to the witness’s

testimony. If the producing party claims that the writing includes

unrelated matter, the court must examine the writing in camera,

delete any unrelated portion, and order that the rest be delivered

to the adverse party. Any portion deleted over objection must be

preserved for the record.

52

Relevant Portions of Fed. R. Evid. 612

• Rule 612 was amended in 2011, effective December

1, 2011.

• The Advisory Committee notes to the 2011

amendment explain the changes were “intended to be

stylistic only,” and there was “no intent to change any

result in any ruling on evidence admissibility.”

• Thus, all pre-amendment case law should remain

viable.

53

Scope of the Use of Rule 612 – Sword

Generally, the “before testifying” portion of Rule 612 applies to

depositions. Nutramax, 183 F.R.D. at 467 (applying Rule 612 to the

context of depositions); but see Omaha Pub. Power Dist. v. Foster

Wheeler Corp., 109 F.R.D. 615, 616-17 (D. Neb. 1986) (commenting

that Rule 612 does not apply to depositions).

Testimony from recollection refreshed by a review of a document before

the deposition can be deemed a “testimonial use” under Rule 612. See,

e.g., Nutramax, 183 F.R.D. at 467.

Therefore, any privilege or protection that might otherwise apply may be

waived by such testimonial use. Id.; see also In re Methyl Tertiary Butyl

Ether (“MTBE”) Prods. Liab. Litig., No. MDL 1358(SAS), 2012 WL

2044432 (S.D.N.Y. June 6, 2012) (noting “a tension is created between

the protection afforded by the [work-product] doctrine and Rule 612’s

provision that the ‘adverse party is entitled to have the writing produced

at the hearing’”). 54

Scope of the Use of Rule 612 – Shield

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 certain

documents 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.

55

Rule 612 Foundational Requirements

Access will only be given to “those writings which

may fairly be said in part to have an impact upon the

testimony of the witness.” Id. (internal quotations

omitted); see also United States v. Sheffield, 55 F.2d

341, 343 (8th Cir. 1995) (“Rule 612 is not a vehicle

for a plenary search for contradicting or rebutting

evidence that may be in a file but rather is a means to

reawaken recollection of the witness to the witness's

past perception about a writing.”).

Rule 612 cannot be used “as a pretext for wholesale

exploration of an opposing party’s files.” Nutramax,

183 F.R.D. at 468. 56


Deposing counsel must first show that the witness

used the particular document to refresh his or her

memory on a specific, relevant topic.

Second, deposing counsel must show that the witness

actually used the document for the purpose of

testifying.

If the requesting party cannot lay this two-step

foundation, the documents need not be produced.

Nutramax, 183 F.R.D. at 468.

57


If the two-step foundation can be met, there is still another

element that must be addressed. Audiotext Commc'ns

Network, Inc. v. US Telecom, Inc., 164 F.R.D. 250, 252

(D. Kan 1996).

Rule 612(2) provides that the deposing party must also

show, and the court must find, that the “interests of

justice” support production of the document used to

refresh recollection. Nutramax, 183 F.R.D. at 468.

This element requires a “balancing test to weigh the

policies underlying the work product doctrine against the

need for disclosure to promote effective cross-

examination and impeachment.” Id.

58


(“Interests of Justice”) The Nutramax court provided nine illustrative, but not

exhaustive, factors for a court to consider:

59

(1) status of the witness—for example,

fact, expert, or corporate representative;

(2) nature of the issue in dispute;

(3) when the events took place;

(4) when the documents were reviewed;

(5) the number of documents reviewed;

(6) whether the witness prepared the

documents reviewed;

(7) the extent to which the

documents contain “pure” attorney

work product;

(8) whether the documents had

been previously disclosed; and

(9) whether there are legitimate

concerns regarding destruction of

the documents.

Id. at 469–70.


(“Interests of Justice”)

Applying this analysis on a case-by-case basis,

the Nutramax court ultimately found that the

interests of justice favored ordering production of

some of the individual documents.

“[T]here is greater need to know what materials

were reviewed by expert and designee witnesses

in preparation for deposition since the substance

of their testimony may be based on sources

beyond personal knowledge.” Id. at 469.

60

Practical Uses and Defenses

The issue can arise several ways, for example:

Sometimes, the deposition notice will contain a

blanket request for all documents reviewed in

preparation for the deposition; or

The deposing party may, as in Sporck, request

production of all preparation materials at the

outset of the deposition, prior to laying any

foundation or asking any substantive questions.

Under the Sporck/Nutramax line of cases, either

approach is improper. 61


In a jurisdiction following Sporck, any pre-deposition

document request for the compilation of materials

used in preparation should be objected to as asking

for protected work product, possibly with a motion

for protective order as well.

However, it is important to distinguish between

disclosure of the individual compiled preparation

materials themselves, and disclosure of the contents

of a compilation as a compilation.

This strategy was used in Frazier v. Ford Motor Company, No. 4:05CV04077, 2008 WL 4809130

(W.D. Ark. Oct. 31, 2008). 62


The Frazier court sustained the objection to the

requested blanket production of all preparation materials,

as it was observed that the production would require

Ford to tell plaintiff's lawyers which documents, of those

already produced, Ford's lawyers deem significant.

The court reasoned:

“While it is the task of Ford’s lawyers to prepare

their witnesses to testify, it is the task of the

plaintiff’s lawyers to select the documents about

which they wish to inquire. The rules do not

contemplate that Ford’s lawyers must assist the

plaintiff’s lawyers in selecting documents about

which to inquire during a deposition.”

63


Likewise, in a Sporck jurisdiction, a comprehensive

request during the deposition itself without a proper

foundation first being laid should likewise be met with

an objection.

In Sporck, 759 F.2d at 313-14, plaintiff's counsel

attempted to elicit the identification and production of all

documents examined or referred to by Charles Sporck in

preparation for his deposition.

Defense counsel objected and plaintiff moved to compel.

The Third Circuit noted that the request was premature.

64


The Sporck court noted:

“In seeking identification of all documents reviewed

by petitioner prior to asking petitioner any questions

concerning the subject matter of the deposition,

respondent’s counsel failed to establish either that

petitioner relied on any documents in giving his

testimony, or that those documents influenced his

testimony. Without eliciting that testimony, there

existed no basis for asking petitioner the source of

that testimony.”

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

65

Practical Uses and Defenses Check all local rules and the law of the jurisdiction.

Any premature attempt to use Rule 612 as a means to

defeat privilege must be met with an objection.

The party seeking such materials must then seek to lay

the proper foundation for each document requested.

Specific questioning, implicating particular documents,

is required. Sporck, 759 F.2d at 318; see also Stone

Container Corp. v. Arkwright, No. 93 C 6626, 1995 WL

88902 (N.D. Ill. Feb. 28, 1995).

If deposing counsel fails to lay the foundation properly,

defending counsel should instruct the witness not to

answer. See Fed. R. Civ. P. 30(c)(2).

66

Recent Case Law Tattletale Portable Alarm Sys, Inc. v. Calfee, Halter & Griswold

LLP, No. 2:10-cv-226, 2012 WL 2062648 (S.D. Ohio June 7,

2012):

Company president reviewed time line prepared by company’s counsel to

refresh his recollection of dates in preparation for deposition.

Magistrate judge compelled production of the time line. 276 F.R.D. 573

(S.D. Ohio 2011).

District judge sustained company’s objection, holding that “[b]ecause this

document directly reflects the opinion of plaintiff’s counsel, it is not

subject to disclosure.”

Court also rejected notion that use in refresh memory waived privilege.

67

Recent Case Law In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig.,

No. MDL 1358(SAS), 2012 WL 2044432 (S.D.N.Y. June 6,

2012):

Defense expert reviewed and read from a chart containing summary of all

defense experts’ opinions during his deposition.

Court noted the tension between work-product protections and Rule 612

when the witness uses the work product to refresh his or her recollection.

Court discussed the differing approaches but favored a “balancing test to

determine whether Rule 612 requires disclosure, notwithstanding the

existence of a privilege.”

Rejected a bright-line rule of mandatory production.

68

Recent Case Law Brown v. Tethys Bioscience, Inc., No. 3:1 IMC 11, 2011 WL

4829340 (E.D. Va. Oct. 11, 2011):

Plaintiffs’ subpoenaed “any and all documents [the witness] brought to

[his] deposition.” Defendant did not object to the production of non-

privileged documents, but objected to production of two documents on

attorney-client and work-product grounds. Plaintiff did not challenge

their protected status, but argued they were put to testimonial use,

requiring production under Rule 612.

Court largely followed Nutramax and held that plaintiffs bore the burden

to show the documents were put to a testimonial use. Court applied many

factors under Nutramax and others cases.

In granting the motion to quash the subpoena, the court ruled that

plaintiffs failed to carry their burden and that their allegations of

purported testimonial use were “conclusory” and failed to show the

documents had “an impact upon the testimony of the witness.”

69

Recent Case Law In re Yasmin & Yaz (Drospirenone) Mktg. Sales Practices &

Relevant Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF,

2011 WL 2580764 (S.D. Ill. June 29, 2011):

Defense objected to questioning designed to elicit the identity of

documents compiled by defense counsel and reviewed by the witness in

preparation for deposition.

Court surveyed law and purported to follow Sporck in refusing to require

disclosure of the compilation.

However, court held that “[i]dentification of the document or materials

that a witness reviewed prior to his or her deposition—without

designating which, if any, of the documents were selected by counsel—

does not implicate the same work-product concerns . . . .”

Court also ruled that “Rule 612 is not intended to be used as a general

discovery device.” Applied Sporck procedure.

70

Recent Case Law Other recent cases:

Greenwood Realty, Inc. v. Action Realty, Inc., No. 8:09-cv-02683-JMC,

2011 WL 652531 (D.S.C. Feb. 15, 2011) (applying Nutramax and

ordering production of mediation presentation used by witness to refresh

recollection in preparation for deposition);

In re Managed Care Litig., 415 F. Supp. 2d 1378 (S.D. Fla. 2006)

(applying multifactoral Nutramax test to hold that mere review of an

attorney-client privileged document to refresh the deponent’s recollection

before testifying did not waive the privilege).

71

Ethical Considerations

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)

72

Questions?

[email protected]

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