Plaintiff waived objection to discovery from testifying expert where objection was not made until expert deposition was in progress.

In an HCLA case discovery dispute, the Tennessee Court of Appeals ruled that plaintiff’s testifying experts’ “notes, drafts, and communications with counsel” were discoverable under the Tennessee Rules of Civil Procedure and that plaintiff had waived any claim that the requested items were privileged.

In Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023), plaintiff filed a healthcare liability case against defendants based on injuries that occurred during plaintiff’s c-section. During the deposition of one of plaintiff’s testifying experts, the expert referenced an email sent to plaintiff’s counsel that included a bullet-point list as well as a page of handwritten notes, neither of which had been provided to defendants in response to defendants’ interrogatories, requests for production of documents, or requests accompanying the deposition notice. Defendants filed a motion to compel plaintiff to produce certain documents from her testifying experts, including “correspondence to and from her expert witnesses, draft reports of expert witnesses, and any similar materials.” Plaintiff responded that the documents were protected from discovery, but the trial court ultimately granted the motion to compel, which was affirmed (but modified) on appeal.

In its analysis, the Court initially clarified which Rules of Civil Procedure applied here. Because the experts at issue were identified as testifying experts, Rule 26.02(4)(A) applied to discovery related to these experts. Further, the Court ruled that Rule 26.02(3), which addresses discovery of trial preparation materials, applied, but it clarified that “the requirements of subdivision (3) are subject to those of subdivision (4) for discovery of expert witness information.”

When considering whether the motion to compel was properly granted, the Court first determined whether the documents requested were discoverable under Rule 26.02(4)(A). Defendants were seeking “materials inclusive of the communications between [plaintiff’s counsel] and her expert witnesses, draft reports, and notes made by experts,” and those “materials are not specifically delineated in Rule 26.02(4)(A)(i).” The Court noted, however, that the language of Rule 26.02(4)(A)(i) “was not intended to establish an outer limit for what can be discovered about an expert,” and that the Rule says nothing “to suggest that a party is absolutely prohibited from seeking additional information about an opponent’s expert witnesses[.]” (internal citation omitted). Considering the language of the Rule and caselaw interpreting the Rule, the Court held that “the testifying expert witnesses’ notes, draft reports, and communications requested by Defendants are discoverable under Rule 26.02(4)(A), provided that another privilege does not apply.”

Next, the Court considered plaintiff’s argument that the work product doctrine applied to protect these documents from discovery, ultimately determining that plaintiff had waived any such objection. Rule 33.01 requires answers and objections to interrogatories to be served within 30 days after receiving said discovery requests. Rule 34.02 has a similar timeline for requests for the production of documents. In this case, plaintiff first received defendants’ discovery requests, which included a request for the documents at issue on this motion to compel, in 2018. In response, plaintiff stated that her expert witnesses had not been identified, but she did not object to the scope of the requests. When plaintiff made her expert disclosures almost three years later, she “did not object to the additional expert witness information previously requested…, and she did not state that she was withholding any materials.” Again, when producing documents in response to the deposition notice, plaintiff did not object to the scope or give “notice of any withheld materials prior to the deposition.” Plaintiff’s first objection came during the deposition when defendant sought materials in response to a statement made by the expert about a document he had created and shared with counsel. Considering these facts, the Court ruled that plaintiff “waived her objections to discovery of her expert witnesses’ notes, draft report, and communications with her counsel through failure to timely and expressly object to these materials as requested in interrogatories and requests for production of documents…” The Court therefore affirmed the grant of defendants’ motion to compel.

The Court of Appeals did find that the trial court order granting the motion to compel was written in an overly broad way, so it slightly modified the order before affirming it, leaving in the provision allowing plaintiff to submit a privilege log or request an in camera review of any materials she felt “contain[ed] mental impressions of her counsel.”

Judge Swiney wrote a concurring opinion in this case, in which Judge Davis joined, writing that while he felt the current Tennessee Rules of Civil Procedure required the result reached by the Court, he hoped that Tennessee would adopt the 2010 amendment to Federal Rule of Civil Procedure 26(b)(4). This amendment “protects, with three specific exceptions, draft reports and communications between counsel and trial expert witnesses from discovery,” and Judge Swiney wrote that it is “a better approach.” Judge Swiney noted that the Tennessee rule encourages attorneys and experts to “rely exclusively on oral communication,” and that “such a chill on investigation and communication runs contrary to the very purposes of the [HCLA]…”

This opinion was released 5.5 months after oral arguments in this case.

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