Discoverability of Attorney Work Product Communications Supplied to Experts

The first part of this article discussed the split in the circuit courts on the issue of whether a party must produce all communications and materials that were supplied by the party's attorney to a testifying expert, even if these communications (oral or written) would otherwise be protected as attorney work product. The majority of federal courts have adopted a "bright-line rule" that all information shared with a testifying expert must be produced, even if it includes "core" attorney work product, namely the attorney's mental impressions, conclusions, opinions or legal theories. A minority, however, has declined to follow this bright-line rule and instead has held that providing attorney work product materials to a testifying expert does not waive the attorney work product protection. The conclusion of this series will discuss the minority view and compare the two views.

19 minute read November 05, 2004 at 10:54 AM

By

Beth L. Kaufman And David Black