Opinion
Civil No. 97-1358 (SMO).
January 11, 1999.
Peter D. Hoffman, Esquire, Law Offices of Peter D. Hoffman, Frenchtown, N.J., Attorney for Plaintiff.
David J. Bishop, Esquire, Paarz, Master, Koernig, Crammer, O'Brien, Bishop Horn, Pleasantville, N.J., Attorney for Defendant Jane S. Friehling, D.O.
OPINION
Presently before the Court is the application brought by David J. Bishop, Esquire, attorney for Defendant Jane S. Friehling, D. O., seeking the production of certain material provided by Plaintiff's counsel to Plaintiff's expert witness in preparation for the expert's report and deposition testimony. The Court having considered the parties submissions and having conducted a telephone conference on November 30, 1998, and for the reasons discussed below, the Court holds that the December 4, 1997 letter from Peter D. Hoffman, Esquire, to Dr. Michael L. Schilsky is discoverable and must be produced to the Defendants in this action.
Discussion
Briefly stated, this case arose from a motor vehicle accident that occurred on July 13, 1995 in which the car Plaintiff Thomas G. Jakelsky was driving struck and killed a pedestrian. Plaintiff was convicted of careless driving on November 15, 1995. Plaintiff alleges, among other things, that the proximate cause of the accident was Defendant Dr. Friehling's negligence in failing to diagnose and treat Plaintiff for a rare disease known as Wilson's Disease.
The issue before the Court is whether a December 4, 1997 letter from Plaintiff's counsel to Dr. Schilsky, Plaintiff's expert witness, is protected by the attorney work product doctrine and, if so, whether the letter is nevertheless discoverable under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure.
Initially, Plaintiff claimed work product protection for two letters sent to Dr. Schilsky — the December 4, 1997 letter and a June 6, 1997 letter. Plaintiff's counsel informed the Court in a December 22, 1998 letter that the June 6, 1997 letter to Plaintiff's expert was produced to Defendants at Dr. Schilsky's deposition. Accordingly, the December 4, 1997 letter to Dr. Schilsky is the only letter at issue here. The parties have not raised the issue of whether Plaintiff's production of the June 6, 1997 letter might operate as a waiver of any privileges or protections asserted as to the subject matter of the December 4, 1997 letter. See 8 Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2016.2 at 238 (West 1994) ("[Waiver] often is held to extend beyond materials revealed and to include any other materials or communications on the same subject matter."). The Court will not address this issue because the parties have not briefed the issue and the Court's holding renders the issue moot.
The work product doctrine protects from disclosure documents "prepared in anticipation of litigation." Maertin v. Armstrong World Indus., Inc., 172 F.R.D., 143, 148 (D.N.J. 1997) (citing Conoco, Inc. v. United States Dep't of Justice, 687 F.2d 724, 730 (3d Cir. 1982)). The doctrine provides an independent basis upon which the litigants may rely for protection of an attorney's trial preparation thoughts and materials.Hickman v. Taylor, 329 U.S. 495, 497 (1947); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 592 (3d Cir. 1984). The work product doctrine protects from disclosure those documents and other tangible things that a party or a party's representative prepares in anticipation of litigation in recognition of the need for a lawyer to "work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman, 329 U.S. 495 at 510-11. The doctrine covers the "written material obtained or prepared by an adversary's counsel with an eye toward litigation," and it includes: "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs. . . ." Bogosian, 738 F.2d at 592.
The work product doctrine is narrower than the attorney- client privilege in that it can be pierced in some circumstances if the party seeking the information can demonstrate a "substantial need" for the information. See Fed.R.Civ.P. 26(b)(3).
Rule 26(b)(3) in effect codifies the work product doctrine and its limited protection. The Rule provides, in pertinent part:
Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.Fed.R.Civ.P. 26(b)(3).
The December 4 letter to Plaintiff's expert appears to be attorney work product. The document was prepared by Plaintiff's counsel and appears to be an outline the Plaintiff's expert is to use is preparing his report in this action. Therefore, the document was prepared because of or in anticipation of this litigation. Additionally, the letter reveals Plaintiff's attorney's thoughts and impressions of this case. For example, paragraph number five of the letter provides the expert with the elements that Plaintiff will have to prove at trial to prove that Dr. Friehling was negligent in diagnosing and treating Plaintiff. Additionally, the letter suggests that Plaintiff seeks to prove at trial that Dr. Friehling is a specialist and thus, subject to a heightened standard of care.
The Court is not convinced that the December 4 letter is, as Plaintiff describes it, "core work product." Most of the letter merely provides the expert with a form to follow in drafting his report. The letter does not contain counsel's evaluation of the case or an evaluation of the strength or weakness of any witness's testimony. Nor does the report reveal counsel's trial strategy. Defendant has not argued that the letter is not attorney work product. The Court will assume, for purposes of this motion, that the December 4 letter is work product that contains counsel's mental impressions.
Prior to 1993, that might have been the end of this Court's analysis because, prior to 1993, the law in this Circuit protected from disclosure attorney work product materials that had been considered by an expert witness in preparing his or her report or preparing for testimony. See Bogosian, 738 F.2d at 594. However, the 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure require disclosure of all materials considered by a party's expert witness in reaching his or her opinion notwithstanding the fact that the material might otherwise have been protected by the work product doctrine. See Karn v. Rand, 168 F.R.D. 633, 637 (N.D.Ind. 1996); B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, Inc., 171 F.R.D. 57, 66-67 (S.D.N.Y. 1997); Barna v. United States, Civ. No. 95-6552, 1997 WL 417847, *2 (N.D.Ill. 1997).
The Court begins its analysis with the express words of the applicable rule. Rule 26 provides, in pertinent part:
Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Fed.R.Civ.P. 26(a)(2)(B) (emphasis supplied). According to the express directive in the rule, parties must disclose all "data or other information considered by the [expert] witness in forming the opinions [in his or her report]." Id. The Advisory Committee Notes to the 1993 amendment clarify the rule's application. The note provides, in pertinent part:
The [expert] report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert's opinions. Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions — whether or not ultimately relied upon by the expert — are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.
Fed.R.Civ.P. 26(a)(2)(B) advisory committee's note (1993) (emphasis supplied).
Prior to the 1993 amendments to the rule, there had been some confusion among the federal courts as to whether material that would ordinarily be protected from disclosure by the work product doctrine under Fed.R.Civ.P. 26(b)(3) is discoverable under Fed.R.Civ.P. 26(b)(4) when the material had been shown to a witness prior to testifying. See Karn, 168 F.R.D. at 636-37 (discussing the split among authority prior to the 1993 amendments). The amendments to Rule 26(a)(2)(B) resolve that issue as it applies to expert witnesses and compels disclosure of all materials that the expert considered in forming his or her opinion even if the material would otherwise have been protected from disclosure by the attorney work product doctrine. See Lamonds v. General Motors Corp., 180 F.R.D. 302, 305-06 (W.D.Va. 1998); B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, Inc., 171 F.R.D. 57, 66-67 (S.D.N.Y. 1997); Barna v. United States, Civ. No. 95-6552, 1997 WL 417847, *2 (N.D.Ill. 1997);Musselman v. Phillips, 176 F.R.D. 194, 199 (D.Md. 1997); Karn v. Rand, 168 F.R.D. 633, 637 (N.D.Ind. 1996); Furniture World, Inc. v. D.A.V. Thrift Stores, Inc., 168 F.R.D. 61, 62 (D.N.M. 1996); United States v. City of Torrance, 163 F.R.D. 590, 593 (C.D.Cal. 1995); 8 Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2016.2 at 252 (West 1994) ("At least with respect to experts who testify at trial, the disclosure requirements of Rule 26(a)(2)(B), adopted in 1993, were intended to pretermit further discussion and mandate disclosure despite privilege.").
The December 4, 1997 letter to Dr. Schilsky falls squarely within Rule 26(a)(2)(B)'s disclosure requirements. The letter purports to be a guide for the expert in preparing his opinion in this case. It sets-forth the precise format the expert is to follow in drafting the report. Additionally, the letter asks the expert to frame his conclusions in a manner that addresses each of the elements of negligence that Plaintiff must be able to prove at trial. Finally, the letter advises the expert that his opinion must be "grounded within the context of a scientific basis within your training, education and experience," that his opinion must be based on "scientific and/or medical methodology," and that the report must focus on the alleged malpractice of the Defendant, Dr. Friehling, rather than the malpractice of other doctors. It certainly appears from the face of this letter that it was "considered" by Dr. Schilsky in forming his opinion in this case.
Plaintiff argues that while Rule 26(a)(2)(B) may require the disclosure of facts supplied to an expert, it does not require disclosure of an attorney's mental impressions provided to the expert and considered by the expert in rendering his opinion. Several district court opinions have adopted Plaintiff's argument and made a distinction under the rule between facts disclosed to an expert and the attorney's mental impressions and held that while the data and facts considered by the expert are discoverable, work product protections still apply to an attorney's mental impressions and opinions. See, e.g., Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 642-43 (E.D.N.Y. 1997); Haworth v. Herman Miller, Inc., 162 F.R.D. 289, 294 (W.D.Mich. 1995).
As discussed in note 3, infra , the Court is assuming, for purposes of this motion despite some misgivings, that the December 4 letter is attorney work product that contains counsel's mental impressions.
The Court rejects Plaintiff's argument and finds that Rule 26(a)(2)(B) requires disclosure of all materials considered by an expert, not merely factual data. First, there is nothing in the rule itself or in the Advisory Committee Notes to the 1993 amendments that indicates the disclosure requirements are limited to factual data considered by the expert. The Court will not read such a limitation into the clear language of the rule. Second, facts and data considered by an expert, even those provided by an attorney, have never been protected from disclosure. See B.C.F. Oil, 171 F.R.D. at 66. Plaintiff's reasoning would render the 1993 amendments to Rule 26(a)(2)(B) nothing more than a codification of the long settled principle that facts contained in materials otherwise discoverable are not shielded from discovery merely because they were once in the possession of an attorney. Facts and underlying data considered by an expert always have been discoverable even before the 1993 amendments to the rule and they are discoverable today. The Court rejects Plaintiff's argument and holds that all material considered by a party's expert witness in forming his or her opinion in the expert's report or before testifying at deposition or at trial are discoverable under Fed.R.Civ.P. 26(a)(2)(B).
Conclusion
For the reasons discussed above, the December 4, 1997 letter from Plaintiff's counsel to Plaintiff's expert witness is not shielded from discovery by the attorney work product doctrine. Plaintiff shall produce the letter in its entirety within ten (10) days of entry of the accompanying order.
O R D E R
THIS MATTER having been brought before the Court upon letter application by David J. Bishop, Esquire, attorney for Defendant, Jane S. Friehling, D.O., for an order compelling Plaintiff to produce certain documents; and the Court having considered the submissions of the parties; and the Court having convened a telephone conference on November 30, 1998; and for the reasons in the opinion accompanying this Order;
IT IS this 11th day of January, 1999 hereby
ORDERED that Defendant's application is GRANTED. Plaintiff shall produce to Defendant the December 4, 1997 letter from Plaintiff's counsel to Plaintiff's expert witness, Dr. Michael Schilsky, within ten (10) days of the date this order is entered.