Vol. 75, No. 6, June 2002

Discoverability of Work-Product Materials Reviewed by Testifying Experts

Despite protections afforded attorney work product under Wisconsin law, attorneys litigating matters in Wisconsin courts must be mindful of the potential discoverability of the substance of all communications with and all work product reviewed by testifying experts.

by Michael P. Matthews

ou are deposing the opposing party's testifying expert. You have asked for the expert's entire file on the matter and opposing counsel produces it to you. As she hands over the file, opposing counsel says, "of course, we have taken out all the letters and emails that I sent to the expert and that he sent to me, as well as the expert's notes of my conversations with him, because they contain my mental impressions, conclusions, opinions, and legal theories and thus are completely protected from discovery as core attorney work product." The expert admits that he reviewed these materials but denies that he relied on them in forming his opinion in the matter. Based on your review of the expert's report and opposing counsel's previous arguments in the case, you have a sneaking suspicion that opposing counsel has spoon-fed her arguments and theories of the case to her expert, but unfortunately you can never see those documents to confirm your suspicion because of the work-product rule. Or can you?

Despite protections afforded attorney work product under Wisconsin law, several Wisconsin trial courts recently have ordered the production of work-product materials in discovery because they were divulged to a testifying expert.¹ These courts ordered the production even of core attorney work product revealing the mental impressions of counsel, without regard to whether the expert relied on such materials in forming an opinion. Although Wisconsin did not adopt the 1993 Amendments to the Federal Rules of Civil Procedure, which, as most federal courts have held, clarified that such materials are discoverable,² Wisconsin state courts nonetheless have narrowly construed the work-product rule in the context of expert discovery in the interest of providing for full examination of the true bases of a testifying expert's opinion. Moreover, the Wisconsin Court of Appeals has suggested, and courts in other jurisdictions have held, that parties may in some circumstances waive work-product protection if work product divulged to a testifying expert is deemed to have been used to refresh the expert's memory.³

Wisconsin Rules on Attorney Work Product and Expert Discovery

Wis. Stat. section 804.01(2)(d), enacted in 1976, provides for the pretrial discovery of testifying experts and their opinions:

"Discovery of facts known and opinions held by experts ... may be obtained as follows: ... A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means."

Discovery from nontestifying experts, on the other hand, is only permissible "upon motion showing that exceptional circumstances exist under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."⁴

Wis. Stat. section 804.01(2)(c) codifies the work-product rule, providing that qualified protection from discovery is available for work product and that core attorney work product is completely protected, but that these protections are "subject to" the expert discovery provisions of section 804.01(2)(d):

"Subject to par. (d), a party may obtain discovery of documents ... prepared in anticipation of litigation ... only upon a showing that the party seeking discovery has substantial need of the materials. ... 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."⁵

It appears that no Wisconsin court has addressed the effect of the "subject to" language in section 804.01(2)(c). However, some federal courts interpreting Federal Rule of Civil Procedure 26(b)(3) and (b)(4), which contains the same language as Wis. Stat. section 804.01(2)(c) and (d), have stated that the proviso in subdivision (b)(3) that the work-product rule exists only "[s]ubject to" the expert discovery provisions of subdivision (b)(4) makes it "error to treat as `work product' the opinions of experts, as well as the grounds for such opinions."⁶

Wisconsin Supreme Court Case Law

Although Wisconsin appellate courts have not directly addressed whether attorney work product revealed to a testifying expert is discoverable, the Wisconsin Supreme Court has consistently viewed the work-product rule as an obstacle to the ascertainment of the truth that must be narrowly construed to ensure correct adjudication of controversies. Even before the enactment of section 804.01, the Wisconsin Supreme Court stated in State ex rel. Reynolds v. Circuit Court for Waukesha County that the work-product rule "provides no basis for refusing [parties] the opportunity of examining ... expert witnesses concerning the relevant opinions they have formed, and the observations, knowledge, information, and theories on which the opinions are based."⁷ The Wisconsin Supreme Court noted in Reynolds that a number of other courts had applied the work-product rule to preclude expert discovery, but that the court would instead follow federal precedent rejecting application of the work-product rule to preclude expert discovery because "[t]he primary concern of courts of justice is to elicit truth essential to correct adjudication."⁸

The Wisconsin Supreme Court also held in State ex rel. Shelby Mutual Insurance Company v. Circuit Court for Milwaukee County that a party can only invoke the "extraordinary" protection of the work-product rule to protect an expert's files from discovery if the expert is not going to testify.⁹ Although not directly addressed in Shelby Mutual, the unavailability of work-product protection for testifying experts' materials would appear to be the logical corollary of this holding.¹⁰

Recent Wisconsin Trial Court Rulings

In one recent matter in Milwaukee County Circuit Court, the defendants moved to compel production of a letter and an email from the plaintiffs' counsel to the plaintiffs' testifying expert that the plaintiffs' counsel had claimed contained his mental impressions and his theories of the case. The expert had testified in his deposition that he had not relied on this correspondence in forming his opinion. The court granted the motion to compel, holding that Shelby Mutual counseled that work-product protections must be narrowly construed and that the motion would be granted "in the interest of making all information available ... as to the bases for experts' opinions." The court stated that if lawyers tell experts what the lawyers' theories and opinions are and tell experts how they could present them at trial, then "at least the experts should be able to be questioned" about such communications.¹¹

Michael P. Matthews, Michigan 1996 magna cum laude, is an associate with Foley & Lardner, Milwaukee, practicing in commercial and government enforcement litigation.

In another recent matter in Waukesha County Circuit Court, the court ordered the production of letters from counsel to several testifying experts, letters from several testifying experts to counsel, and a testifying expert's notes of conversations with counsel, all of which counsel had claimed contained attorney work product. Only one of the testifying experts had testified that he relied on information in these materials in forming his opinion in the matter. The court reasoned that opposing counsel is entitled to explore whether the letters influenced the expert's opinions, stating that "if you name an expert and then you tamper with your expert ... you run the risk" of disclosure, "[p]articularly if we've got a situation where one of these letters essentially is steering [the] expert in the direction of here's what I think your opinion on this point needs to be." The court held that "otherwise you run the risk of having an expert who is no more than a mouthpiece for the attorney's theory of the case."¹²

These trial court decisions are of course not binding precedent on other courts, and there may well be other Wisconsin trial court opinions on this topic. However, these opinions indicate that at least some Wisconsin trial courts will treat all materials divulged to a testifying expert as discoverable. Counsel thus should be mindful of this possibility when communicating with a testifying expert, both orally and in writing.

Other Potential Bases for Disclosure of Work-Product Materials

Of course, parties may obtain discovery of work product that does not reflect the mental impressions of counsel by a showing of substantial need and undue hardship pursuant to Wis. Stat. section 804.01(2)(c). In addition, the Wisconsin Court of Appeals has stated in dicta, and courts in other jurisdictions have held, that parties may in some circumstances waive all work-product protection of anything divulged to a testifying expert pursuant to Wis. Stat. section 906.12 or Federal Rule of Evidence 612, which provide that materials used to refresh a witness's memory for the purpose of testifying are discoverable.¹³ Although it may seem that most attorney-expert communications would not fall into the category of materials used to refresh memory, some courts outside of Wisconsin have held that the mere possession of materials during the time preceding a deposition can be enough to establish that the materials are discoverable pursuant to Rule 612, even when a party asserts that the witness did not review the documents for the purpose of the witness's deposition.¹⁴ Wis. Stat. section 906.12 thus provides another potential basis upon which courts may order the production of work-product materials disclosed to a testifying expert.

Conclusion

Attorneys litigating matters in Wisconsin state courts must be mindful of the potential discoverability of the substance of all communications with and all work product reviewed by testifying experts. Even a testifying expert's notes of oral discussions with counsel and materials containing counsel's mental impressions and conclusions may be discoverable, regardless of whether the expert relied on such materials in forming opinions. To the extent attorneys want to discuss theories or topics with an expert without risking disclosure to opposing parties, it would be prudent to retain a nontestifying expert for such purposes.

Endnotes

¹See, e.g., Bay Breeze Condo. Ass'n Inc. v. Norco Windows Inc., No. 98-CV-2221 (Wis. Cir. Ct. Waukesha County, Order of Hon. Donald J. Hassin Jr. and Transcript of June 25, 2001 Motion Hearing); Gauthier v. Journal-Sentinel Inc., No. 99-CV-003572 (Wis. Cir. Ct. Milwaukee County, Order of Hon. Thomas P. Donegan and Transcript of Oct. 22, 2001 Motion Hearing). The law firm with which the author is associated, Foley & Lardner, was involved in these cases.

²See, e.g., Karn v. Ingersoll-Rand Co., 168 F.R.D. 633 (N.D. Ind. 1996) (citing Fed. R. Civ. P. 26(a)(2)); see Fed. R. Civ. P. 26(a)(2) Advisory Committee's Note ("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.").

³Litigants also sometimes claim that materials revealed to an expert are protected by the attorney-client privilege pursuant to Wis. Stat. section 905.03. However, the attorney-client privilege is inapplicable to communications from almost anyone other than a client to a lawyer, unless those communications reveal the substance of confidential communications from a client, see, e.g., Journal/Sentinel Inc. v. School Bd. of Sch. Dist. of Shorewood, 186 Wis. 2d 443, 460, 521 N.W.2d 165, 173 (Ct. App. 1994), which is rarely the case in attorney-expert correspondence. Cf. State v. Lange, No. 84-1566-CR (Wis. Ct. App. Sept. 25, 1985) (unpublished) (attorney-client privilege did not warrant suppression of defendant's communications to defendant's expert).

⁴Wis. Stat. § 804.01(2)(d). Although Wisconsin courts sometimes refer to discoverability of materials "relied" upon by experts, section 804.01(2)(d) does not provide that this limits the proper scope of expert discovery.

⁵Wis. Stat. § 804.01(2)(c) (emphasis added).

⁶Intermedics Inc. v. Ventritex Inc., 139 F.R.D. 384, 388 (N.D. Cal. 1991); see also Fed. R. Civ. P. 26(b)(4) Advisory Committee's Note (1970 Amendment) ("These new provisions of subdivision (b)(4) ... reject as ill-considered the decisions which have sought to bring expert information within the work-product doctrine.") (citations omitted). Because Wisconsin has not adopted the 1993 Amendments to the Federal Rules of Civil Procedure, federal authority such as Intermedics interpreting Federal Rule 26 as it existed prior to 1993 (which is "substantially identical" to Wis. Stat. section 804.01) is persuasive authority in Wisconsin courts. See Meunier v. Ogurek, 140 Wis. 2d 782, 788, 412 N.W.2d 155, 157 (Ct. App. 1987).

⁷State ex rel. Reynolds v. Circuit Court for Waukesha County, 15 Wis. 2d 311, 321, 112 N.W.2d 686, 691 (1961).

⁸Id. at 321, 112 N.W.2d at 691 (citing Sachs v. Aluminum Co. of Am., 167 F.2d 570 (6th Cir. 1948)); see also Crull v. Preferred Risk Mut. Ins. Co., 36 Wis. 2d 464, 469, 153 N.W.2d 591, 594 (1967) (reversing denial of order to show cause why work product should not be produced, because "denial of discovery would prejudice [the party's] preparation for trial and impede the basic objective of our trial system, which is the ascertainment of the truth"); cf. Jax v. Jax, 73 Wis. 2d 572, 243 N.W.2d 831 (1976) (holding that [b]ecause the attorney-client privilege is "an obstacle to the investigation of the truth" it should be "strictly confined within the narrowest possible limits consistent with the logic of the principle") (citing Jacobi v. Podevels, 23 Wis. 2d 152, 156-57, 127 N.W.2d 73, 76 (1964)).

⁹State ex rel. Shelby Mut. Ins. Co. v. Circuit Court for Milwaukee County, 67 Wis. 2d 469, 475, 228 N.W.2d 161, 164 (1975).

¹⁰Furthermore, federal courts interpreting the same provisions in the Federal Rules of Civil Procedure and following Wisconsin's overriding policy interest in truth-finding as expressed in Reynolds and the other authorities cited above have held that core opinion work product is discoverable if revealed to a testifying expert. See, e.g., Intermedics Inc. v. Ventritex Inc., 139 F.R.D. 384, 387-88 (N.D. Cal. 1991); Energy Capital Corp. v. United States, 45 Fed. Cl. 481, 494 (2000); Douglas v. University Hosp., 150 F.R.D. 165, 168 (E.D. Mo. 1993), aff'd, 34 F.3d 1070 (8th Cir. 1994). These courts have held that such communications are discoverable even when the expert disclaims reliance on them in forming his or her opinion, because attorney-expert letters "which are `considered but rejected by the expert trial witness could be even more important for cross-examination than those actually relied upon by [the trial expert].'" Douglas, 150 F.R.D. at 168 (citing Eliasen v. Hamilton, 111 F.R.D. 396, 400 n.5 (N.D. Ill. 1986)); see also Intermedics, 139 F.R.D. at 390 n.6 (same). In fact, some courts have held that material shown to an expert is discoverable even if the expert represents that he or she did not consider it, see County of Suffolk v. Long Island Lighting Co., 122 F.R.D. 120, 123 (E.D.N.Y. 1988) ("Where the expert has acquired information relevant to his opinion, defendants should not be bound by his statement that he did not consider it."), as long as the material is "related to matters about which the expert will offer testimony." Intermedics, 139 F.R.D. at 387.

¹¹Gauthier v. Journal-Sentinel Inc., No. 99-CV-003572 (Wis. Cir. Ct. Milwaukee County, Order of Hon. Thomas P. Donegan and Transcript of Oct. 22, 2001 Motion Hearing).

¹²Bay Breeze Condo. Ass'n Inc. v. Norco Windows Inc., No. 98-CV-2221 (Wis. Cir. Ct. Waukesha County, Order of Hon. Donald J. Hassin Jr. and Transcript of June 25, 2001 Motion Hearing).

¹³See Kuklinski v. Rodriguez, 203 Wis. 2d 324, 552 N.W.2d 869 (Ct. App. 1996). In Kuklinski, counsel and an expert allegedly engaged in a "rehearsal" in which counsel suggested to the expert that he should answer certain questions in certain ways. See id. The court stated that if this allegation was true, "whatever work-product protection that might have cloaked the exercise would have been waived" because, inter alia, "Rule 906.12, Stats., makes available to an opponent anything that a witness uses to `refresh the witness's memory for the purpose of testifying either before or while testifying.'" Id.

¹⁴See Wheeling-Pittsburgh Steel Corp. v. Underwriters Labs. Inc., 81 F.R.D. 8, 9-10 (N.D. Ill. 1978); see also Berkey Photo Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 615-16 (S.D.N.Y. 1977). Furthermore, some federal courts have held that material shown to a witness must be produced pursuant to Rule 612 even if it is core opinion work product. See, e.g., James Julian Inc. v. Raytheon Co., 93 F.R.D. 138, 146 (D. Del. 1982)

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