Many clients will face a crisis during the course of your representation. In the immediate aftermath of a crisis, you will need to ensure that employees remain safe, preserve critical evidence, and investigate what happened to avoid a recurrence; but, you also will be preparing for potential litigation and developing strategies to minimize the company’s liability. One of the crucial first steps is to ensure you have the appropriate experts investigate the scene and preserve evidence. In doing so, you must consider whether a particular expert’s findings and communications will be privileged or disclosed; and, if you may wish to keep them privileged, you must ensure you have taken the proper steps to do so. You also must consider whether that expert may later be designated as a testifying expert and, if so, whether an expert report may be required for any ensuing litigation.
Preparation and Disclosure of Investigation Reports and/or Rule 26 Expert Reports. Accident investigations may be conducted by in-house experts, outside experts, or both. If an expert prepares an investigation report, the discoverability of that report depends on a number of factors. First, if the investigation report is disclosed to a third party, such as a governmental entity who also is investigating the matter, the report is not privileged. Second, if the expert who prepared the report is designated in the litigation to be a testifying expert, the report likely will be discoverable.
Whether your expert must prepare an expert report for the litigation varies according to the laws of the jurisdiction and whether the case is in federal or state court. This article focuses on federal courts, but state courts may present different or additional questions. In federal court, in-house experts who are familiar with the subject matter of the lawsuit, and possess “specialized knowledge, skill, experience, training, or education,” but who are not “specifically employed to provide expert testimony,” do not have to prepare written reports. Luminara Worldwide v. Liown Elecs. Co., 2016 WL 6914995, at *5 (D. Minn. May 18, 2016). But outside experts who are retained to assist with the investigation and are disclosed as testifying experts, must prepare a report. See Fed. R. Civ. P. 26(a)(2)(C) (requiring disclosure of (1) “the subject matter on which the witness is expected to present evidence” and (2) “a summary of the facts and opinions to which the witness is expected to testify”).
Blurred Lines: Reporting vs. Non-Reporting (Fact) Experts. The distinction between a reporting and non-reporting expert can be less than clear. The U.S. District Court for the Eastern District of New York, for example, recently indicated that treating physicians can fall into one of three categories, depending on the nature of their testimony: (1) “testimony limited to facts acquired and opinions formed during consultation,” which “requires no Rule 26 disclosure”; (2) “testimony that also includes reliance on outside sources, such as another doctor’s records or opinions or facts acquired as part of litigation,” which is properly governed by Rule 26(a)(2)(C); and (3) “testimony where circumstances suggest the doctor was retained or specially employed to provide expert testimony,” which is “governed by Rule 26(a)(2)(B), which governs the Daubert-level expert.” Pierce v. City of New York, 2017 WL 2623857, at *3 (E.D.N.Y. June 16, 2017). Per the court’s analysis, a treating physician could be considered either a reporting or a non-reporting expert, depending on the type of materials forming the basis for their opinions. Id. Other jurisdictions have adopted similar methods to determine whether a treating physician is properly considered a non-reporting expert. See, e.g., Reynolds v. Knox Cty. Gov’t, 2018 WL 6523439, at *4 (E.D. Tenn. Dec. 12, 2018) (finding that a treating physician properly “[o]pine[s] on causation for his or her patient’s injuries without the need for an expert report under Rule 26(a)(2)(B) so long as the treating physician learned such information through the normal course of treating the patient.”).
Some courts have extended this reasoning to investigators of a crisis. In United States v. Sierra Pac. Indus., 2011 WL 2119078 (E.D. Cal. May 26, 2011), the U.S. District Court for the Eastern District of California analogized fire investigators to treating physicians, finding that because (1) their testimony was limited to “the knowledge and opinions that they formed at the time they drafted their report on the cause and origin of the [fire],” and (2) they were not paid for their expert opinions, the investigators were non-reporting experts. Id.; see also Cooper v. Meritor, 2018 WL 1513006, at *2 (N.D. Miss. March 27, 2018) (a non-reporting expert’s testimony should arise only “from his ground-level involvement in the events giving rise to the litigation”).
Employees offering expert opinions can further blur the line between a reporting and a non-reporting expert. Federal Rule 26 may require an employee offering an expert opinion to prepare a written report, even if she is not specifically retained for litigation purposes, if her “duties as the party’s employee regularly involve giving expert testimony.” See Navajo Nation v. Norris, 189 F.R.D. 610, 612 (E.D. Wash. 1999) (holding that the plain language of the rule protects an employee from having to submit written reports if he “does not regularly testify for the employer but [is] doing so in a particular case.”). New York federal courts, among others, take an even broader view, and maintain that where an employee “is being called solely or principally to offer expert testimony, there is little justification for construing the rules as excusing the report requirement,” even if her “duties do not normally involve giving expert testimony.” Day v. Consol. Rail, 1996 WL 257654, at *3 (S.D.N.Y. May 15, 1996) (emphasis added).
Determining Whether Expert Communications Are Privileged. Whether communications between an attorney and an expert are discoverable also likely turns, in large part, on the status of the expert. Following the 2010 Amendment, Federal Rule 26 explicitly “protect[s] communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B),” Fed. R. Civ. P. 26(4)(C), but it remains “silent … as to communications between a party’s attorney and non-reporting experts.” Sierra Pac. Indus., 2011 WL 2119078, at *8.
You must consider the discoverability of a communication ahead of time, and this requires awareness of the state of the law in jurisdictions in which you practice. New York federal courts have yet to opine on whether the 2010 Amendment extended privilege protections to communications with non-reporting experts. Other federal courts have come to mixed conclusions. Compare Sierra Pac. Indus., 2011 WL 2119078, at *8 (finding privilege did not apply to non-reporting employee experts) with Graco v. PMC Glob., Inc., 2011 WL 666056, at *1 (D.N.J. Feb. 14, 2011) (finding privilege did apply to non-reporting employee experts that “did not regularly give expert testimony, but had submitted affidavits containing expert opinions”). The weight of the authority suggests that the privilege extension applies “only to communications between a party’s attorney and testifying experts specifically retained to provide expert testimony or who regularly provide expert testimony as part of their employment.” 3 Bus. & Com. Litig. Fed. Cts. §29:13 (4th ed. 2018).
Courts declining to find that communications between attorneys and non-reporting experts are entitled to the same protections as those with reporting experts have largely relied on Advisory Committee Notes as well as the Rule’s silence. See Sierra Pac. Industries, 2011 WL 2119078, at *6. The 2010 Advisory Committee Note explains “[t]he rule does not itself protect communications between counsel and other expert witnesses, such as those for whom disclosure is required under Rule 26(a)(2)(C),” which the Eastern District of California interpreted to “show that the committee did not intend that communications between a party’s counsel and non-reporting experts generally be protected.” Id. at *6.
Even so, many federal courts have acknowledged that existing protections (such as the work product doctrine) may still shield these communications from discovery. United States v. R.J. Zavoral & Sons, 2014 WL 12756821, at *17 (D. Minn. April 23, 2014); see also 2010 Advisory Committee Note to Fed. R. Civ. P. 26 (stating that the Rule “does not exclude protection under other doctrines, such as privilege or independent development of the work-product doctrine”). But not all federal courts have found that communications between attorneys and some non-reporting witnesses should be protected by the work product doctrine. See Sierra Pac. Indus., 2011 WL 2119078, at *10 (finding that such non-reporting experts are “hybrid fact and expert opinion witnesses,” and “discovery should be permitted into such witnesses’ communications with attorneys, in order to prevent, or at any rate expose, attorney-caused bias”). Whether a non-reporting expert’s communications with an attorney will be discoverable is a fact intensive analysis, and the outcome may vary widely based on jurisdiction.
Crisis Response Plan. It can be tempting to try to obtain as much information as quickly as possible during times of crisis, but you must consider the potential implications on discovery when retaining and working with an expert, whether that expert is in-house or a retained outside consultant. Companies in industries prone to major accidents, such as industrial manufacturing, should have a crisis response plan in place before the accident occurs. The plan should consider what experts may be contacted to assist with the immediate investigation, and take steps to ensure any findings, reports and communications are kept privileged if and as desired.
Jessie H. Zeigler is a member at Bass, Berry & Sims PLC in Nashville, where she serves as chair of the products liability and torts practice group. Joseph J. Ortego is a partner at Nixon Peabody in New York, where he serves as vice-chair of the litigation department, chair of NP Trial (an international team of experienced trial lawyers at the firm), and chair of the firm’s aviation practices. Courtney A. Hunter and Sarah B. Miller, associates at Bass, Berry & Sims, assisted in the preparation of this article.