Witness Preparation: Attorney-Client Privilege and Work Product Challenges

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Witness Preparation: Attorney-Client Privilege and Work Product Challenges Reconciling the Demands of FRCP 26(b) and FRE 612(2) When Preparing Witnesses for Deposition and Trial TUESDAY, JULY 24, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Robert L. Wise, Partner, Bowman and Brooke, Richmond, Va. Steven C. Bennett, Partner, Jones Day, New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Witness Preparation: Attorney-Client Privilege And Work Product Challenges: FRCP 26 And Its Implications July 2012 Strafford Publications Steven C. Bennett Jones Day New York 5

6 Presenter Background Partner, Jones Day (New York office) Commercial Litigation (20 years) Member, New York State Bar Association Corporate Counsel Committee Adjunct Professor, New York Law School, Hofstra 6

7 Disclaimers The views expressed are solely those of the presenter, and should not be attributed to the presenter s firm or its clients. This presentation does not constitute legal advice; nor does it constitute solicitation of an attorney/client relationship. 7

8 Agenda Privilege and work product protection under FRCP 26 Protecting core work product from disclosure under FRE 612 Balancing rules Best practices References 8

9 Overview 9

10 General Elements To Establish Attorney-Client Privilege Legal advice sought From professional legal advisor in that capacity Communications made for that purpose In confidence By the client At the client s instance permanently protected Unless the privilege is waived United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950) 10

11 Expert May Be Covered By Attorney-Client Privilege Employee of client Translator FRCP 26(b)(4)(B): exclusion of discovery, except: Exceptional circumstances Impracticable to obtain facts by other means 11

12 Work Product Doctrine Protects information created in anticipation of litigation Generally, attorney s mental processes Specifically, memoranda, analyses, etc. that attorney creates Can apply to consultants engaged by counsel Unlike attorney-client privilege, both the attorney and the client can claim it Fed. R. Civ. P. 26(b)(3) 12

13 Expert May Be Covered By Work Product FRCP 26(b)(3)(a): materials created by or for a party, including attorney or consultant Anticipation of litigation (aid in preparation) Not merely business advice 13

14 Consulting Experts 14

15 Range Of Functions Document organization/analysis Claim/defense preparation Assist counsel with discovery/strategy Assist counsel with negotiation, mediation, litigation 15

16 Non-Traditional Expert Media consultant Jury consultant Graphics artist 16

17 Potential Problem Areas Unretained expert Conflicts Unhelpful opinion No privilege for identity of unretained experts Consulting expert for one purpose; testifying expert for other purpose Treating physician (fact/opinion mixture) Cannot create privilege after-the-fact 17

18 Thompson v. Haskell Co., 1994 WL (M.D. Fla. 1994) Claim for sexual harassment Alleged depression Plaintiff sees doctor; doctor creates report Defense wants report to show mental state at time of firing Held: report must be produced No other source of comparable information 18

19 Chiquita Int l Ltd. v. M/V Bolero Reefer, 1994 WL (S.D.N.Y. 1994) Failure in shipment of bananas Expert surveys condition of cargo Held: Expert has performed more than fact gathering Photos of cargo not discoverable, as defendant had own photos 19

20 Testifying Experts 20

21 Attorney Communications With Expert May Be Part Of What Expert Considered Explanation of the case/what attorney wants Documents selected for review Comments on expert report Terms of engagement/limits/fees 21

22 Documents Provided To Expert Lose Privilege Advisory Committee Notes: Documents provided are not privileged, even if expert does not rely on them Documents provided are subject to discovery. In re Omeprazole Patent Lit., 2005 WL (S.D.N.Y. 2005) 22

23 Documents Must Relate To Expert s Work Define by subject matter of report. See American S.S. Owners v. Alcoa S.S. Co., 2006 WL (S.D.N.Y. 2006) Must bear some probative relationship to expert s opinion. See Oneida, Ltd. V. United States, 43 Fed. Cl. 611 (Fed. Cl. 1999) 23

24 Potential Problem Areas Expert begins as non-testifying consultant; then is asked to testify Expert operates in firm that provides both testifying and consulting service (for the same client) Testifying expert relies on information from nontestifying expert 24

25 Attorney + Client + Expert If expert is testifying, communication may not be privileged Beware testifying expert involvement in strategy 25

26 Shooker v. Superior Court, 4 Cal. Rptr. 3d 334 (Cal. App. 2003) Plaintiff designates himself as an expert in the case Trial court orders discovery regarding conversations with counsel Plaintiff withdraws designation Held: designation alone does not waive privilege 26

27 Spoliation By Expert FRCP 26(a)(2)(B) requires disclosure of information considered, not only what ultimately forms basis for opinion Adverse inference or other sanction where expert fails to preserve/produce information considered. See Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001) Expert need not retain every scrap of paper. Fidelity Nat l Title Ins. Co. v. Intercounty Nat l Title Ins. Co., 412 F.3d 745 (7 th Cir. 2005) 27

28 FRCP 26 Amendments 28

29 Amended Rule 26 (2010) Add/clarify disclosure requirements for experts for whom no report is required Limit disclosure to facts and data Some work product protection for drafts and attorney-expert communications 29

30 Purposes Rule 26(a) amendments were proposed because: Many lawyers agree to not exchange drafts and communications in particular cases Access to drafts and communications often increase the expense of discovery, with minimal return (if any) The need to avoid reducing communications (and drafts) to writing complicates the attorney-expert working relationship and can increase cost The need for consulting experts increased with the introduction of the current rule in 1993, in order to insulate testifying experts, which creates inequities for clients that cannot afford two experts Attorneys are less willing to use experts who do not have prior testifying experience, for fear their attempts to train such expert to testify will be misconstrued 30

31 Text Changes 26(a)(2)(B)(ii) Old Rule: data or other information considered by the witness in forming [all opinions] Revised Rule: facts or data considered by the witness in forming [all opinions] Comment to revised rule makes clear change intended to avoid disclosure of drafts and at least some attorney-expert communications 31

32 Text Changes 26(b)(4)(B) Draft reports and disclosures are protected as work product Applies to any testifying expert 26(b)(4)(C) Communications between expert and attorney are protected as work product Applies only to experts required to provide a report Three exceptions: compensation, facts considered, and assumptions 32

33 Text Changes 26(a)(2)(C) Provides for disclosure of certain information for experts not subject to report requirements Subject matter of evidence under 702, 703, or 705 Summary of facts and opinions Comment suggests that disclosure need not include facts unrelated to expert opinions 33

34 Practical Implications New rules only apply to federal cases. New rules will probably be applied retroactively. Consider stipulating with opposing counsel. Only communications with Rule 26(a)(2)(B) experts will receive work product protection; 34

35 Practical Implications Attorney communications with testifying experts who do not prepare a report are discoverable. Work product protection is not absolute. Rule 612(b) of the Rules of Evidence still applies. 35

36 Practical Implications Segregate your non-confidential communications with testifying experts. Failure to properly disclose a non Rule 26(a)(2)(B) testifying expert may result in exclusion of the expert s testimony. The new federal rules do not change attorneys ethical duties. 36

37 Cases Interpreting New Rules Dongguk Univ. v. Yale Univ., 2011 WL (D. Conn. May 19, 2011) (hand-written notes still discoverable). Sara Lee Corp. v. Kraft Foods, Inc., F.R.D., 2011 WL (N.D. III. April 1, 2011) (denying motion to compel in part by applying new facts or data language and revised rule). Daugherty v. Amer. Express Co., 2011 WL (W.D. Ky. March 23, 2011) (applying amendments to case filed in 2008 as just and practical ). CIVIX-DDI, LLC v. Metro. Regional Inform. Systems, Inc., F.R.D., 2011 WL (E.D. Va. March 8, 2011) (amended rules apply to case filed on August 30, 2010). Graco v. PMC Global, Inc., 2011 WL (D. N.J. Feb. 14, 2011) (analyzing revised rule). 37

38 Cases Interpreting New Rules Nat l Western Life Ins. Co. v. Western Nat l Life Ins. Co., 2011 WL (W.D. Tex. March 3, 2011) (limiting discovery under new rule). Crabbs v. Wal-Mart Stores, Inc., 2011 WL (S.D. Iowa Feb. 4, 2011 (applying 26(A)(2)(C) to treating physicians). Estate of Allison v. Vince Scoggins, P.A., 2011 WL (W.D. N.C. Feb. 10, 2011) (applying revised rule and requiring a privilege log). 38

39 Best Practices 39

40 Communication Discuss role of expert Discuss process: Information exchange Report drafting Discovery Establish policy re: notes/communication with counsel Beware experienced experts who don t follow directions 40

41 Maintain Protection Of Consulting Expert Route directions through counsel Mark documents privileged Keep track for privilege review/log 41

42 Maintain Independence of Testifying Experts Expert should follow standard methods for inquiry Attorney may describe available information, but expert chooses what to review Expert must be willing to defend opinion 42

43 References Bennett, Expert Discovery: What Is Discoverable?, N.L.J., Dec. 11, 2006 Bennett, Explore Potential Of Expert Witness Work, 18:5 CPA Man. Partner Rep. 5 43

44 Questions? 44

45 Witness Preparation: Attorney-Client Privilege and Work Product Challenges: The Role of FRE 612 in Protecting Work Product Robert L. Wise Bowman and Brooke LLP 45

46 Firm Profile Bowman and Brooke LLP is a nationally recognized trial firm with one of the largest product liability practices in the country. The firm s 185 attorneys defend a variety of corporate clients, including many Fortune 500 and internationally-based companies, in widely publicized catastrophic injury and wrongful death matters, and in other complex litigation throughout all 50 states. Bowman and Brooke s lawyers regularly represent their clients and try cases in courthouses across the United States. Complementing our national product liability defense practice, Bowman and Brooke provides well-established litigation practice groups in commercial, intellectual property, environmental, construction, consumer warranty and healthcare litigation. The firm has offices in Minneapolis, Phoenix, Detroit, San Jose, Los Angeles, Richmond, Columbia, Dallas and Austin. 46

47 Presenter Background Co-Managing Partner (Richmond office). Founding member of firm-wide Appellate and Trial Support Practice Group. Focuses on appeals and advance motions support, class-action defense, product liability litigation, and intellectual property litigation. Member of DRI s Appellate Advocacy and Diversity Committees and director of the Virginia Association of Defense Attorneys. 47

48 Issue The selection and compilation of documents as a means to prepare the witness is it work product? 48

49 Opinion Work-Product The selection and compilation by counsel of documents from a larger set of documents is opinion work-product. Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.), cert. denied, 474 U.S. 903 (1985) (selection and compilation are highly-protected... opinion work-product ); see also In re Allen, 106 F.3d 582, 608 (4th Cir. 1997); Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986); but see In re San Juan dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1018 (1st Cir. 1988) (finding attorney compilation unprotected). See also 7 James Wm. Moore et al., Moore s Federal Practice 26.70[2][b] n.15 (3d. ed. 2008). 49

50 Opinion Work-Product Attorney compilations provide a window into counsel's mental impressions about the case and which documents counsel thinks are most relevant to a topic. Sporck, 759 F.2d at 316. The Sporck court reasoned: In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research. There can be no doubt that at least in the first instance the binders were entitled to protection as work product. Id. (quoting James Julian, Inc. v. Raytheon Corp., 93 F.R.D. 138, 144 (D. Del. 1982)). 50

51 Scope of the Protection Thus, Fed. R. Civ. P. 26 is always a first step, but its protection is not absolute. Protected materials, including those within a compilation used to help prepare a witness for deposition, may be discoverable if they are put to a testimonial use. See, e.g., Nutramax Labs., Inc. v. Twin Labs, Inc., 183 F.R.D. 458, 463 (D. Md. 1998). 51

52 Relevant Portions of Fed. R. Evid. 612 (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Party s Options; Deleting Unrelated Matter.... an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. 52

53 Relevant Portions of Fed. R. Evid. 612 Rule 612 was amended in 2011, effective December 1, The Advisory Committee notes to the 2011 amendment explain the changes were intended to be stylistic only, and there was no intent to change any result in any ruling on evidence admissibility. Thus, all pre-amendment case law should remain viable. 53

54 Scope of the Use of Rule 612 Sword Generally, the before testifying portion of Rule 612 applies to depositions. Nutramax, 183 F.R.D. at 467 (applying Rule 612 to the context of depositions); but see Omaha Pub. Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615, (D. Neb. 1986) (commenting that Rule 612 does not apply to depositions). Testimony from recollection refreshed by a review of a document before the deposition can be deemed a testimonial use under Rule 612. See, e.g., Nutramax, 183 F.R.D. at 467. Therefore, any privilege or protection that might otherwise apply may be waived by such testimonial use. Id.; see also In re Methyl Tertiary Butyl Ether ( MTBE ) Prods. Liab. Litig., No. MDL 1358(SAS), 2012 WL (S.D.N.Y. June 6, 2012) (noting a tension is created between the protection afforded by the [work-product] doctrine and Rule 612 s provision that the adverse party is entitled to have the writing produced at the hearing ). 54

55 Scope of the Use of Rule 612 Shield However, Rule 612 does not provide an automatic right to all documents reviewed in preparation for the corporate representative deposition. Instead, while the compilation retains its protected status, there may be an exception to the privilege when certain documents are put to a testimonial use. Nutramax, 183 F.R.D. at 467. But the party seeking production of such individual documents must first lay a proper foundation. Id. at

56 Rule 612 Foundational Requirements Access will only be given to those writings which may fairly be said in part to have an impact upon the testimony of the witness. Id. (internal quotations omitted); see also United States v. Sheffield, 55 F.2d 341, 343 (8th Cir. 1995) ( Rule 612 is not a vehicle for a plenary search for contradicting or rebutting evidence that may be in a file but rather is a means to reawaken recollection of the witness to the witness's past perception about a writing. ). Rule 612 cannot be used as a pretext for wholesale exploration of an opposing party s files. Nutramax, 183 F.R.D. at

57 Rule 612 Foundational Requirements Deposing counsel must first show that the witness used the particular document to refresh his or her memory on a specific, relevant topic. Second, deposing counsel must show that the witness actually used the document for the purpose of testifying. If the requesting party cannot lay this two-step foundation, the documents need not be produced. Nutramax, 183 F.R.D. at

58 Rule 612 Foundational Requirements If the two-step foundation can be met, there is still another element that must be addressed. Audiotext Commc'ns Network, Inc. v. US Telecom, Inc., 164 F.R.D. 250, 252 (D. Kan 1996). Rule 612(2) provides that the deposing party must also show, and the court must find, that the interests of justice support production of the document used to refresh recollection. Nutramax, 183 F.R.D. at 468. This element requires a balancing test to weigh the policies underlying the work product doctrine against the need for disclosure to promote effective crossexamination and impeachment. Id. 58

59 Rule 612 Foundational Requirements ( Interests of Justice ) The Nutramax court provided nine illustrative, but not exhaus tive, factors for a court to consider: (1) status of the witness for example, fact, expert, or corporate representative; (2) nature of the issue in dispute; (3) when the events took place; (4) when the documents were reviewed; (5) the number of documents reviewed; (6) whether the witness prepared the documents reviewed; (7) the extent to which the documents contain pure attorney work product; (8) whether the documents had been previously disclosed; and (9) whether there are legitimate concerns regarding destruction of the documents. Id. at

60 Rule 612 Foundational Requirements ( Interests of Justice ) Applying this analysis on a case-by-case basis, the Nutramax court ultimately found that the interests of justice favored ordering production of some of the individual documents. [T]here is greater need to know what materials were reviewed by expert and designee witnesses in preparation for deposition since the substance of their testimony may be based on sources beyond personal knowledge. Id. at

61 Practical Uses and Defenses The issue can arise several ways, for example: Sometimes, the deposition notice will contain a blanket request for all documents reviewed in preparation for the deposition; or The deposing party may, as in Sporck, request production of all preparation materials at the outset of the deposition, prior to laying any foundation or asking any substantive questions. Under the Sporck/Nutramax line of cases, either approach is improper. 61

62 Practical Uses and Defenses In a jurisdiction following Sporck, any pre-deposition document request for the compilation of materials used in preparation should be objected to as asking for protected work product, possibly with a motion for protective order as well. However, it is important to distinguish between disclosure of the individual compiled preparation materials themselves, and disclosure of the contents of a compilation as a compilation. This strategy was used in Frazier v. Ford Motor Company, No. 4:05CV04077, 2008 WL (W.D. Ark. Oct. 31, 2008). 62

63 Practical Uses and Defenses The Frazier court sustained the objection to the requested blanket production of all preparation materials, as it was observed that the production would require Ford to tell plaintiff's lawyers which documents, of those already produced, Ford's lawyers deem significant. The court reasoned: While it is the task of Ford s lawyers to prepare their witnesses to testify, it is the task of the plaintiff s lawyers to select the docu ments about which they wish to inquire. The rules do not contemplate that Ford s lawyers must assist the plaintiff s law yers in selecting documents about which to inquire during a deposition. 63

64 Practical Uses and Defenses Likewise, in a Sporck jurisdiction, a comprehensive request during the deposition itself without a proper foundation first being laid should likewise be met with an objection. In Sporck, 759 F.2d at , plaintiff's counsel attempted to elicit the identification and production of all documents examined or referred to by Charles Sporck in preparation for his deposition. Defense counsel objected and plaintiff moved to compel. The Third Circuit noted that the request was premature. 64

65 Practical Uses and Defenses The Sporck court noted: In seeking identification of all documents reviewed by petitioner prior to asking petitioner any questions concerning the subject matter of the deposition, respondent s counsel failed to establish either that petitioner relied on any documents in giving his testimony, or that those documents influenced his testimony. Without eliciting that testimony, there existed no basis for asking petitioner the source of that testimony. Id. at 318 (internal citation omitted; emphasis added). 65

66 Practical Uses and Defenses Check all local rules and the law of the jurisdiction. Any premature attempt to use Rule 612 as a means to defeat privilege must be met with an objection. The party seeking such materials must then seek to lay the proper foundation for each document requested. Specific questioning, implicating particular documents, is required. Sporck, 759 F.2d at 318; see also Stone Container Corp. v. Arkwright, No. 93 C 6626, 1995 WL (N.D. Ill. Feb. 28, 1995). If deposing counsel fails to lay the foundation properly, defending counsel should instruct the witness not to answer. See Fed. R. Civ. P. 30(c)(2). 66

67 Recent Case Law Tattletale Portable Alarm Sys, Inc. v. Calfee, Halter & Griswold LLP, No. 2:10-cv-226, 2012 WL (S.D. Ohio June 7, 2012): Company president reviewed time line prepared by company s counsel to refresh his recollection of dates in preparation for deposition. Magistrate judge compelled production of the time line. 276 F.R.D. 573 (S.D. Ohio 2011). District judge sustained company s objection, holding that [b]ecause this document directly reflects the opinion of plaintiff s counsel, it is not subject to disclosure. Court also rejected notion that use in refresh memory waived privilege. 67

68 Recent Case Law In re Methyl Tertiary Butyl Ether ( MTBE ) Prods. Liab. Litig., No. MDL 1358(SAS), 2012 WL (S.D.N.Y. June 6, 2012): Defense expert reviewed and read from a chart containing summary of all defense experts opinions during his deposition. Court noted the tension between work-product protections and Rule 612 when the witness uses the work product to refresh his or her recollection. Court discussed the differing approaches but favored a balancing test to determine whether Rule 612 requires disclosure, notwithstanding the existence of a privilege. Rejected a bright-line rule of mandatory production. 68

69 Recent Case Law Brown v. Tethys Bioscience, Inc., No. 3:1 IMC 11, 2011 WL (E.D. Va. Oct. 11, 2011): Plaintiffs subpoenaed any and all documents [the witness] brought to [his] deposition. Defendant did not object to the production of nonprivileged documents, but objected to production of two documents on attorney-client and work-product grounds. Plaintiff did not challenge their protected status, but argued they were put to testimonial use, requiring production under Rule 612. Court largely followed Nutramax and held that plaintiffs bore the burden to show the documents were put to a testimonial use. Court applied many factors under Nutramax and others cases. In granting the motion to quash the subpoena, the court ruled that plaintiffs failed to carry their burden and that their allegations of purported testimonial use were conclusory and failed to show the documents had an impact upon the testimony of the witness. 69

70 Recent Case Law In re Yasmin & Yaz (Drospirenone) Mktg. Sales Practices & Relevant Prods. Liab. Litig., No. 3:09-md DRH-PMF, 2011 WL (S.D. Ill. June 29, 2011): Defense objected to questioning designed to elicit the identity of documents compiled by defense counsel and reviewed by the witness in preparation for deposition. Court surveyed law and purported to follow Sporck in refusing to require disclosure of the compilation. However, court held that [i]dentification of the document or materials that a witness reviewed prior to his or her deposition without designating which, if any, of the documents were selected by counsel does not implicate the same work-product concerns.... Court also ruled that Rule 612 is not intended to be used as a general discovery device. Applied Sporck procedure. 70

71 Other recent cases: Recent Case Law Greenwood Realty, Inc. v. Action Realty, Inc., No. 8:09-cv JMC, 2011 WL (D.S.C. Feb. 15, 2011) (applying Nutramax and ordering production of mediation presentation used by witness to refresh recollection in preparation for deposition); In re Managed Care Litig., 415 F. Supp. 2d 1378 (S.D. Fla. 2006) (applying multifactoral Nutramax test to hold that mere review of an attorney-client privileged document to refresh the deponent s recollection before testifying did not waive the privilege). 71

72 Ethical Considerations Fed. R. Civ. P. 11/Fed. R. Civ. P. 37 Model Rules of Prof'l Conduct R. 3.1 (1983) Model Rules of Prof'l Conduct R. 3.4 (1983) 72

73 Questions? 73