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Preparing Witnesses for Deposition and Trial: Reconciling Demands of FRCP 26 and FRE 612

Protecting Attorney-Client Privilege and Navigating Work Product Challenges

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TUES DAY, JUNE 17, 2014

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

S teven C. Bennett, Partner, Park Jensen Bennett, New Y

• rk

Teresa Rider Bult, Partner, Constangy Brooks & Smith, Nashville, Tenn. Coby Cohen, Assistant General Counsel - Litigation & Employment, Knowledge Universe, Portland, Ore.

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Preparing Witnesses for Deposition and Trial: Reconciling The Demands of FRCP 26 and FRE 612

June 17, 2014

Strafford Publications

5

Disclaimers

• The views expressed are solely those of the presenters and should not

be attributed to the presenters’ firms, companies or their clients.

• This presentation does not constitute legal advice, nor does it

constitute solicitation of an attorney/client relationship.

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Presenters

• Steven C. Bennett
• Park Jensen Bennett LLP – New York, NY
• sbennett@parkjensen.com
• Teresa Rider Bult
• Constangy, Brooks & Smith, LLP – Nashville, TN
• tbult@constangy.com
• C. N. Coby Cohen
• Knowledge Universe Education LLC – Portland, OR
• ccohen@klcorp.com

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Agenda

• Privilege and work product protection under FRCP 26
• Purpose and Effect of FRE 612
• Informative Case Law under FRCP 26 and FRE 612
• Best practices for protecting privilege and work product in witness

preparation

8

Rule 26: Work Product

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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)

10

Work Product Doctrine

• Protects information created in anticipation of litigation

– Generally, attorney’s mental processes – Specifically, memoranda, analyses, ideas, strategies, etc. that the attorney creates or communicates

• 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)

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Hickman v. Taylor, 329 U.S. 495 (1947)

• Origin of work product protection
• Concerned a tugboat accident and the statements of witnesses to

lawyers

• Court held that work product protection was necessary, as it assists

lawyers in the proper preparation of their case, stating that lawyers must be able to work with “a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Id. at 510-11.

• Rather than disrupt the protection, the adverse party can conduct its
• wn investigation through its own counsel

12

Distinction Between Fact and Opinion Work Product

• Fact work product is generally discoverable on a showing of

“substantial need”

• “Core opinion” work product, namely work product that evidences

attorney mental impressions, processes, strategy, etc., is subject to far greater protection and is generally immune from production

• See Hickman

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FRCP 26 (a) (2) – Disclosure of Expert Testimony

• “(A) In General. In addition to the disclosures required by Rule

26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703 or 705.”

• The three Rules of Evidence apply to expert witness evidence,

including testimony (Rule 702), the basis of expert opinions (Rule 703) and the facts and data underlying those opinions (Rule 705).

• Sections (B), (C), (D) and (E) establish rules concerning the

preparation, distribution and supplementation of expert reports, as well as content of disclosures where reports are unnecessary.

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FRCP 26(b)(3) –Work Product Protection

• “(A) Documents and Tangible Things. Ordinarily, a party may not

discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

• (i) they are otherwise discoverable under Rule 26(b)(1); and
• (ii) the party shows that it has substantial need for the materials to prepare its

case and cannot, without undue hardship, obtain their substantial equivalent by other means.”

• Scope of discovery is broad, and this rule is liberally interpreted.

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FRCP 26(b)(4)- Expert Trial Prep

• “(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules

26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.”

• “(C) Trial-Preparation Protection for Communications Between a Party's Attorney

and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

• (i) relate to compensation for the expert's study or testimony;
• (ii) identify facts or data that the party's attorney provided and that the expert considered in

forming the opinions to be expressed; or

• (iii) identify assumptions that the party's attorney provided and that the expert relied on in

forming the opinions to be expressed.”

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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 drafts
• Terms of engagement/limits/fees
• However, Rule 26(b)(4), since its modification in 2010, explicitly

protects most of these communications, except:

• Communications about compensation
• Communicated facts
• Assumptions provided to the expert by the attorney and relied on by the expert

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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)

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Documents Produced/Identified 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)

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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 consulting

expert, potentially subjecting the consulting expert to discovery

20

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

21

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

23

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

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Practical Implications

• New rules only apply to federal cases.
• Consider stipulating with opposing counsel to apply a similar process in state

court.

• Only communications with experts will receive work product

protection.

• Attorney communications with testifying experts who do not prepare a

report could be discoverable (if the testifying expert reviews their

• pinions, for instance), but generally remain protected as work product

because they are consulting experts.

• Work product protection is not absolute.
• Federal Rule of Evidence 612(b) still applies.

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Practical Implications

• Segregate your discoverable communications with testifying experts,

and carefully consider your communications with those 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.

27

Rule 612: Documents Used to Refresh Recollection

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FRE 612-Writing Used to Refresh Recollection

• “(a) 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). . . [A]n 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

• rder that the rest be delivered to the adverse party. Any portion deleted
• ver objection must be preserved for the record.”

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Purpose of FRE 612

• Lawyers have a right to inquire into the credibility and memory of

witnesses

• Concern about work product is evident in the Rule:
• Before hearing, “if justice requires”
• Redact “unrelated matter”
• Must be a “writing” specifically used to “refresh memory” (and not

simply any discussions with counsel)

• The advisory committee's notes to Rule 612 also note that the limit to

testimony "is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited

• nly to those writings which may fairly be said in fact to have an impact

upon the testimony of the witness."

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Practical Effect of FRE 612

• Evidence Rule 612 generally mandates the disclosure to the adverse

party of documents reviewed by a witness in preparation for testimony, sometimes even if they were protected work product

• There are risks that need to be considered in providing work product

material to witnesses in preparation for testimony

31

Informative Cases

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Republic of Ecuador v. Mackay (9th Cir. 2014)

• Part of a series of complex litigation between Chevron and Ecuador
• Chevron was attempting to keep certain portions of expert reports and

information from disclosure, claiming the 2010 FRCP amendments were intended to broadly protect expert witness information

• Ninth Circuit rejected the argument and noted that “Rule 26(b)(3) does not

provide presumptive protection for all testifying expert materials as trial preparation materials” Id. at *22

• Importantly, the Rules protecting mental processes “do not impede

discovery about the opinions to be offered by the expert or the development, foundation or basis of those opinions” Id. at *21

• Discussions with counsel about potential relevance of facts or data or

exploring hypothetical facts are protected, but tests conducted, facts considered, and notes created concerning same are subject to discovery

33

Spork v. Peil, 759 F.2d 312 (3d Cir. 1985)

• Securities fraud class action
• Lawyer asked in discovery for “all documents examined, reviewed or referred to”

in preparation for his deposition and moved to compel when they were not provided

• Third Circuit held that opinion work product “is accorded an almost absolute

protection from discovery because any slight factual content that such items may have is generally outweighed by the adversary system’s interest in maintaining the privacy of an attorney’s thought processes and in ensuring that each side relies on its own wit in preparing their respective cases”

• Additionally, the court held that compilation of particular documents as

important evidences an attorney’s mental processes, and thus is protected from disclosure—requesting all documents reviewed was thus improper

• Individual discoverable documents, on the other hand, are unprotected (but all

documents at issue had been produced already in any event)

34

Audiotext Communications Network, Inc. v. U.S. Telecom, 164 F.R.D. 250, 252-53 (D. Kan. 1996)

• Court compelled disclosure of notebook reviewed by witness before

deposition testimony

• Court noted that the “selecting and grouping of information does not

transform discoverable documents into work product”

• Court held that Rule 612 explicitly overrides any privilege, including

attorney-client privilege, that may otherwise exist, compelling disclosure

• Court also notes that “actual refreshment of recollection is

immaterial” to requirement to produce under Rule 612

35

Aguinaga v. John Morrell & Co., 112 F.R.D. 671 (D. Kan. 1986)

• Similarly to the Spork court, the Aguinaga court held that a witness

could not be compelled to reveal what documents he had been shown in preparation for his deposition

• Rule 612 did not apply because questioning party already had access

to the documents – only purpose behind to the question as to which documents had been shown would be to inform opposing side of “the attorneys’ process of selection and distillation of documents. Discovery would reveal nothing more than what documents the attorneys thought were relevant to the transactions”

36

United States v. 22.80 Acres of Land, 107 F.R.D. 20 (N.D. Cal. 1985)

• Government sought to keep an appraisal done by one of its employees from

disclosure in a condemnation proceeding

• Court analyzed on Rule 26(b)(4) grounds (holding it didn’t apply because the

employee wasn’t retained for the litigation) and 26(b)(3) grounds (holding it didn’t apply because the appraisal was prepared in the normal course of business)

• Court then said that the document also would have been required to have been

produced under FRE 612 because it was used to refresh recollection before deposition testimony, waiving any protection that might have existed

• Court also noted that “courts must balance on a case-by-case basis, the

competing interests present: the objective of full disclosure and ascertainment of the truth that Rule 612 and the federal discovery rules reflect, against the interest in maintaining the confidentiality of protected material, as is represented by the work product doctrine” Id. at 26

37

Parry v. Highlight Indus., Inc., 125 F.R.D. 449 (W.D. Mich. 1989)

• Court considered disclosure of work product protected materials under FRE 612
• Court noted that FRE 612 “does not expressly exempt privileged matter from

disclosure and, therefore, conflicts to some degree with Rule 26(b)(3).” Id. at 452

• Articulated a three part test to balance disclosure against public interest in

maintaining confidentiality of protected materials:

• Whether witness “coaching” has occurred
• Whether the document constituted factual or opinion work product
• Whether the request constitutes a fishing expedition
• In applying the test, the court found that disclosure was unnecessary and that the

documents constituted “core ‘opinion’ work product which is absolutely privileged against disclosure

38

Bogosian v. Gulf Oil Corp., 738 F.2d 587, 593, 595 n.3 (3d Cir. 1984)

• Court noted that merely showing work product to a witness did not amount to

waiver of the work product protection, citing 3 J. Weinstein M. Berger, Weinstein's Evidence ¶ 612[04], at 612-41 to 612-42 (1982) in support of that position, and further that FRE 612 doesn’t override core work product protections

United States v. Sheffield, 55 F.3d 341, 343 (8th Cir. 1995)

• Court held that a mere “glance” at a protected document may not waive

protection, and that the adverse party must make a showing that the review of the document “actually influenced” testimony BUT COMPARE

In re Comair Disaster Litig., 100 F.R.D. 350, 353 (E.D. Ky. 1983)

• A report made by the defendant’s investigator shortly after an airplane crash was

not protected from disclosure because the defendant’s engineer had reviewed the report before being deposed, providing a “substantial need” for the document to conduct reasonable cross examination; still case-by case question

39

Joseph Schlitz Brewing Co. v. Muller & Phipps (Hawaii) Ltd., 85 F.R.D. 118, 120 (W.D. Mo. 1980)

• Disclosure of work-product documents was not compelled when an

attorney, prior to testifying, reviewed his own correspondence file.

• Without a showing that particular document had been consulted (and

maybe not even then), the court was unwilling to invade opinion work product.

• Court reviewed legislative history of Rule 612 and noted it called for

special discretionary safeguards against disclosure of opinion work product used in preparing to testify.

40

Nutramax Labs, Inc. v. Twin Labs, Inc., 183 F.R.D. 458 (D. Md. 1998)

• Nutramax court identified tests to be used to balance FRE 612 against

work product protection. Three prong test of FRE 612 must be met:

• A witness must use a writing to refresh his or her memory
• For the purpose of testifying
• The court must determine that, in the interest of justice, the adverse party is entitled to

see the writing

• The third prong, determination in the interest of justice, has nine

factors for consideration:

• Status of the witness
• Whether the witness prepared the docs
• Nature of the issue in dispute
• Whether the documents reviewed contain
• When the events took place

“pure” attorney work product (strategy, etc.)

• When the documents were reviewed
• Were the documents previously produced
• Number of documents reviewed
• Are there credible concerns of spoliation

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Best Practices for Protecting Work Product in Witness Preparation

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What Needs to Be Considered?

• “Hobson’s Choice” – prepare witness without use of any documents or risk

disclosing your selection of documents to opposing counsel.

• Problem: Ethical Rules:
• ABA Model Rule 1.3 – Diligence. “A lawyer shall act with reasonable

diligence and promptness in representing a client.”

• ABA Model Rule 3.3(a) - Candor Toward The Tribunal
• A lawyer shall not knowingly. . .make a false statement of fact or law

to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. . . Or offer evidence that the lawyer knows to be false.”

• “A lawyer who did not prepare his or her witness for testimony, having

had an opportunity to do so, would not be doing his or her professional job properly.” District of Columbia Bar, Ethics Opinion No. 79 (1979), p. 139.

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Best Practices for Preparing your Witness

• Only show documents to the witness or client that you don’t mind being revealed

to other side

• Sticky issues usually come up with selection-based issues - when you are showing them a

notebook of documents – requiring production of the document itself shows the order you believe is important

• Show documents one at a time, in no particular order. Make sure documents you

show have already been produced to other side and you don’t mind them seeing the documents

• Prep your witness how to answer the question, “what documents did you use to

refresh your memory at deposition?”

• What about question, “what documents did you review to prepare for your

deposition?”

• Can you object as invading attorney-client privilege or work product protection?
• May depend on jurisdiction
• You can possibly “read” documents to witness without running afoul of rules (but

this is perhaps getting too cute with the rules)

• You can discuss case strategy as it relates to the documents without disclosure

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Best Practices if Taking Deposition

• If someone doesn’t produce information you believe they have

reviewed to refresh recollection, your remedy is a motion to compel.

• Must lay proper foundation in deposition.
• Up front identification of all the documents reviewed may be too broad and

protected by work product doctrine (though there is no harm in asking with additional follow-up)

• If you ask the witness about a particular topic and inquire whether the

deponent reviewed any documents to refresh his recollection about that topic, if deponent says yes, you can require production of that document

45

Best Practices with Experts: Communication

• Discuss role of expert
• Discuss process:

– Information exchange – Report drafting – Discovery

• Establish policy re: notes/communication with counsel
• Understand that facts, assumptions given by counsel and fee

information is always disclosable

• Beware “experienced” experts who don’t follow directions

46

Maintain Protection Of Consulting Expert

• Route directions through counsel
• Mark documents “privileged”
• Keep track for privilege review/log

47

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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