Discovery of Expert Witness Materials

To what extent may a party discover communications between an oppsoing party and its expert witness? The Supreme Court of Rhode Island recently addressed this issue in Crowe Countryside Realty Associates Co., LLC v. Novare Engineering Co. (For some reason I cannot get a good link to the opinion so you will have to track it down on the Rhode Island Supreme Court website, Westlaw or Lexis.)

Here is a handy summary of the 19-page opinion: “Without the ability to protect their own conclusions and theories from discovery, attorneys may not be able to fully and confidently prepare expert witnesses for their clients’ trials. Permitting full disclosure
of everything revealed to expert witnesses might hamper the trial preparation process because attorneys would be reluctant to reveal their mental impressions, legal theories, trial tactics, and strategies to testifying experts. In our opinion, it is the disclosure of just such information that Rule 26(b)(3)’s dictation of the work-product privilege was intended to prevent. … We therefore hold that the clear language in the second sentence of subdivision (b)(3) requires that a court protect all core or opinion work product of an attorney, whether or not shared with an expert. We believe that this command to courts, that they “shall protect” opinion work product, was intended to apply to all discovery requests of materials prepared in anticipation of litigation because of the admonition’s location in the general portion of Rule 26 applying to all discovery. See Rule 26(b)(3).”

The opinion was released February 2, 2006.

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