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The parameters of discovery related to an expert may depend on the expert’s relationship to, and role in, the litigation. If an expert is expected to testify at trial, the Federal Rules of Civil Procedure require full disclosure of the expert’s opinion and the bases of that opinion. If an expert is non-testifying, i.e. retained by the client to advise and consult but not to provide expert testimony, ordinarily his opinion and the bases for that opinion need not be disclosed. Fed. R. Civ. P. 26(b)(4)(b), 26(a)(2)(b). This column deals with the interesting and potentially problematic issue of the parameters of expert discovery when the expert has assumed dual roles: expert consultant and testifying expert. This issue can arise in many contexts. For example, in a bankruptcy proceeding, the debtor may retain a consulting firm and rely on an expert at the firm to advise the company on various financial and management issues. After the bankruptcy filing, the expert may advise the company during negotiations with various constituencies, which may lead to litigation on one of the negotiated matters. Once litigation begins, the same expert may be designated as a testifying expert to support the debtor’s position at trial. The adverse parties then have the right to discover the bases of the expert’s opinion and review materials the expert relied on, reviewed and considered in formulating that opinion. The question may arise, however, whether the adverse parties have a right to review otherwise privileged and confidential documents, materials and correspondence, transmitted to the expert in his capacity as expert consultant, but unrelated to the expert’s opinion and anticipated testimony. This question implicates two competing interests. On one hand, the right to discover the bases of an adverse expert’s opinion is fundamental and essential to understanding and opposing an adversary’s case. On the other hand, a bright-line rule requiring the production of all materials and documents provided to a testifying expert could discourage companies from employing expert consultants to gain valuable insight and assistance. Documents given to expert discoverable by opposition The Federal Rules require disclosure of a testifying expert’s opinion and the bases for that opinion. Fed. R. Civ. P. 26(a)(2)(B). In addition, Rule 26(a)(2)(B) requires disclosure of data or other information considered by the expert witness in forming his opinions. Rule 26(a)(2)(B) has been interpreted to require testifying experts to produce all documents provided to them related to the subject matter of their opinion and anticipated testimony. See Am. S.S. Owners Mut. Prot. & Indem. Ass’n v. S.S. Co., 2006 WL 212376, at 1-2 (S.D.N.Y. Jan. 26, 2006). Courts have clarified that documents and information provided to a testifying expert in connection with his or her testimony are discoverable by the opposing party, even if the expert did not actually rely on the documents and information in preparing his report. See Schwab v. Philip Morris USA Inc., 2006 WL 721368, at 2 (E.D.N.Y. March 20 2006). “A testifying expert must disclose and therefore retain whatever materials are given to him [t]o review in preparing his testimony, even if in the end he does not rely on them in formulating his expert opinion[.]” Fidelity Nat’l Title Ins. Co. of N.Y. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 751 (7th Cir. 2005). Further, as the Advisory Committee notes on the 1993 amendments to Rule 26(a)(2)(B) make clear, providing otherwise privileged documents or attorney work product to a testifying expert generally constitutes waiver of that privilege. “[L]itigants 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[.]” Advisory Committee Notes on 1993 Amendments. Courts have similarly held that, “any disclosure to a testifying expert in connection with his testimony assumes that privileged or protected material will be made public . . . .[T]here is a waiver to the same extent as with any other disclosure.” In re Omeprazole Patent Litig., 2005 WL 818821, at 10 (S.D.N.Y. Feb. 18, 2005). In addition, parties who do not observe the disclosure requirements of Rule 26(a) may be subject to sanctions, including preclusion, pursuant to Rule 37(c). Fed. R. Civ. P. 37(c)(1); see generally Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuoy Beneficiencia de Puerto Rico, 248 F.3d 29 (1st Cir. 2001). In contrast, there is no requirement that the opinion of a nontestifying expert or expert consultant, the bases for the opinion, or documents or materials relied on in formulating this opinion, be disclosed to adverse parties. Fed. R. Civ. P. 26(b)(4)(b). “[D]iscovery is generally not permitted with respect to the opinions of expert consultants who have not been hired to testify at trial, barring exceptional circumstances.” Cornell Research Found. Inc. v. Hewlett-Packard Co., 223 F.R.D. 55, 78 (N.D.N.Y. 2003). While the expert-disclosure requirement of Rule 26(a)(2)(B) is broad, there is support for the proposition that documents and materials given to a testifying expert in his capacity as nontestifying expert consultant-unrelated to his expert opinion and not considered in forming his opinion-are not subject to disclosure. The express language of Rule 26 requires only the disclosure of “the data or other information considered by the witness in forming the opinions.” Courts have recognized the potential for differing discovery obligations applicable to a dual-role expert. “A single expert can be both a testifying expert, subject to the disclosure requirements of Rule 26(a)(2)(B) regarding some issues, and a consulting expert, not subject to discovery regarding other issues.” See Schwab, at 2. Courts have also recognized that a party may assert a claim of privilege or work-product protection for materials provided to a dual consulting and testifying expert. “It is conceivable that an expert could be retained to testify and in addition to advise counsel outside of the subject of his testimony. Under such a circumstance it might be possible to claim a work product privilege if this delineation were clearly made.” Courts have limited the disclosure requirement of Rule 26(a)(2)(B) to documents that “relate to the subject matter of [the expert's] report.” Further, in B.C.F. Oil, the court held, after in camera inspection, that invoices shared with the expert had nothing to do with preparation of his expert report or his expert testimony, and therefore need not be produced. Similarly, in Oneida Ltd. v. U.S., 43 Fed. Cl. 611, 619, the U.S. Court of Appeals for the Federal Circuit held “that core work product information provided to a testifying expert witness should be discoverable, unless such materials bear no probative relationship to the opinion or testimony the expert is likely to give.” [emphasis added]. And, in Synthes Spine Co. L.P. v. Walden, 232 F.R.D. 460, 465 (E.D. Pa. 2005), the court specifically denied disclosure of notes that had no relation to the expert’s role as a testifying expert. Courts have held, however, that the party resisting disclosure must demonstrate that an expert did not consider particular documents in forming his opinion, and that this burden cannot generally be satisfied by the expert’s representations alone. The burden can be met, for example, when the party opposing disclosure offers “affidavits and deposition testimony ‘clearly establishing’ that the testifying witness never read, reviewed, or considered the subject documents in forming his opinions.” Schwab, at 3. If, however, documents reviewed by an expert acting as a consultant are related to and appear to inform his expert opinion, they are subject to disclosure. In cases where the line is blurred between documents reviewed or generated by the expert as consultant as opposed to as a testifying expert, courts have held that the presumption favors disclosure. “Any uncertainty about ‘the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking discovery.’ ” See Schwab. Tips on navigating expert-disclosure requirements These rules regarding differentiation between the testifying and consulting roles of experts suggest several practical steps for effective treatment of this issue. First, it is important to recognize that any materials, documents or information given or communicated to a testifying expert may be subject to disclosure. The right to discover the bases of an expert’s opinion is broad; it can be difficult to demonstrate the negative assertion that an expert did not consider certain documents or materials in forming his opinion. Ideally, parties would be well-advised to employ separate experts for counseling and expert testimony. Alternatively, parties may use two experts from the same firm: one who advises and another who testifies, with the documents they review tailored accordingly. No matter what arrangements apply, the salient point is that parties should recognize the potential discovery implications associated with an expert’s role in the litigation, before determining what documents or materials should be provided to that expert. Parties should be especially mindful of the testifying-expert disclosure requirements when using e-mail as a means to communicate and transmit information and documents between counsel, their clients and experts. Parties should generally avoid routine courtesy copying of testifying experts on any e-mail between counsel, their clients and experts. Finally, when reviewing documents provided to a testifying expert for production, the initial inquiry should always be that of Rule 26(b)(1), i.e., whether the documents sought are relevant and reasonably likely to lead to the discovery of admissible evidence. If the document is not relevant to the testifying expert’s opinion or the expert did not consider it in forming his opinion, there may a good case for withholding the document under Rule 26(b)(1). Steven C. Bennett is a partner in the New York office of Jones Day. Associates Patricia M. Carrol and Christine E. Jennings also contributed to this article.

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