Attorney Ordered to Disclose Letters Written to Expert Witness

John Caher
10-20-2003

In a ruling that underscores the tension between the work-product doctrine and disclosure, a Northern District judge in New York has adopted a bright-line rule and ordered a plaintiff to disclose letters her attorney wrote to an expert witness.

U.S. Magistrate Judge Gary L. Sharpe said that while courts nationwide have failed to reach consensus on the issue, he is joining those concluding that the expert disclosure requirement of Rule 26 of the Federal Rules of Civil Procedure is "paramount" and "has primacy" over the time-honored doctrine that generally precludes discovery of attorney-generated work product.

"Absent disclosure, effective cross-examination or rebuttal is severely hindered because lawyers cannot anticipate an expert's approach or the data upon which the expert relied," Magistrate Judge Sharpe wrote in an apparent case of first impression in the Northern District. "Thus, the discovery process fails to accomplish its goals of narrowing the issues and avoiding surprise."

The opinion released last week arises within the framework of Ann Baum v. Village of Chittenango, 5:00-CV-1516, a wrongful discharge case near Syracuse.

Plaintiff Ann Baum disclosed the report of her expert, a psychologist. Chittenango, the municipal defendant, also sought letters Baum's attorney had written to the psychologist describing the history and nature of her alleged injuries. Magistrate Judge Sharpe said the letters must be disclosed.

At the heart of the matter is the work-product doctrine, as described by the U.S. Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947), and Rule 26, which has been amended twice since Hickman to address disclosure.

Hickman generally stands for the proposition that work product generated by an attorney in anticipation of litigation should not be discoverable. The U.S. Supreme Court expressed concern that if those materials were readily available to opposing counsel "an attorney's thoughts, heretofore inviolate, would not be his own."

Rule 26 was amended in 1970 to codify the work-product doctrine and make clear that while trial preparation materials were due special protection, they were not categorically immune from disclosure. It was again amended in 1993 to address practical differences in its application. Still, courts are divided on whether the work-product doctrine shields information a lawyer provides to an expert witness.

"[T]his court agrees with [the] assessment that policy reasons support a bright-line rule of disclosure," Magistrate Judge Sharpe wrote.

He said he is mindful of the competing interests at stake, but notes that attorneys can always protect their work by not disclosing it in the first instance.

"Obviously, that tact is less conducive to a productive relationship between attorney and expert, but it is nonetheless a choice," Magistrate Judge Sharpe said. "On the other hand, experts have become a daily occurrence in federal courtrooms, and it is essential that a jury be able to evaluate their opinions on the basis of the information supplied them as they formulated these opinions."