In a commodities fraud case, it was contended by the plaintiff, the Commodity Futures Trading Commission (CFTC), that previous versions of a defendant expert’s report should be produced and not be privileged because of communications between the lawyer and this expert witness.
In 2010, the work-product privilege provided by Federal Rule of Civil Procedure 26(b)(4)(B) and (C) was extended to cover drafts of reports from experts with three exceptions. This privilege extends to communications between lawyers and experts.
The CFTC argued that the defendants “should be deemed to have forfeited Rule 26(b)(4)’s work-product protection because there is evidence that defendants’ counsel participated in drafting sections of the report.” The U.S. magistrate judge handling this U.S. District Court case rejected the CFTC’s forfeiture argument stating: “The CFTC’s approach would require an analysis of the degree of counsel involvement (both quantity and quality) in the drafting of the report. Such an analysis would necessarily require production of all of the drafts of the report for comparison, as well as production of all, or virtually all, communications between expert and counsel. The drafters intended Rule 26(b)(4)(B) and (C) to protect against that discovery.”
A party may not usually discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer or agent). Fed.R.Civ.P. 26(b)(3)(A).
In 2010, an amendment to Rule 26 expressly extended the protection to drafts of expert’s reports and communications between a party’s attorney and an expert. Fed.R.Civ.P. 26(b)(4)(B) and (C).
In this case, the CFTC argued that the defendants could not invoke the work-product protection afforded by Rule 26(b)(4)(B) and (C) because defendants’ attorney “commandeered” the drafting of the experts’ reports. In discovery, the defendants’ expert was questioned as to whether or not the lawyer wrote any portion of the expert’s report. The court said that that was a proper question and the expert has to answer it. Lawyers are not supposed to write their experts’ reports or any portion of them. The expert here testified that he wrote the report, that the opinion and conclusions was his, but that plaintiff’s counsel helped him “clean it up.”
In another factually similar case on the work-product issue, the expert had testified that he could not specify which words plaintiff’s counsel changed without comparing the original draft. Ultimately, the court rejected the plaintiff’s counsel’s assertion of work-product protection under Rule 26(b)(4)(B) and (C) and ordered the production of all drafts of the expert’s report and a number of communications from the plaintiff’s counsel. This was from the case of Gerke v. Travelers Casualty Insurance Co., 289 F.R.D. 316(D) Or. 2013.
In the present motion, the CFTC argues that defendant should be deemed to have forfeited Rule 26(b)(4)’s work-product protection because there is evidence that defendants’ counsel participated in drafting sections of the report. That argument depends on the type of discovery the amendment was intended to prevent. An analysis like this would require production of all of the drafts of the report for comparison, as well as production of all, or virtually all, communications between expert and counsel. The drafters of Rule 26(b)(4)(B) and (C) intended it to protect against that discovery. Therefore, the district court magistrate rejected the CFTC’s argument that the court should undertake a detailed analysis of defendants’ counsel’s involvement in the drafting of the experts’ reports and declare that defendants have forfeited the protection of Rule 26(b)(4)(B) and (C) based on some qualitative threshold of attorney involvement. The motion to compel the production of the draft reports was denied.
U.S. Commodity Futures Trading Commission v. Newell, No. 12 C 6763 (U.S. District Court for the Northern District of Illinois, Aug. 25, 2014).
Kreisman Law Offices has been handling business litigation, commercial litigation and catastrophic injury cases for individuals, families and businesses for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Orland Park, Arlington Heights, Park Ridge, Palos Park, Calumet City, Blue Island, South Holland, Worth, Alsip, Antioch, Wheeling, Riverside and Berwyn, Ill.
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