Sixth Circuit Requires Disclosure of Attorney Work Product Provided to Expert Witnesses

In a ruling of first impression in the Sixth Circuit on whether attorney opinion work product given to expert witnesses is discoverable under Rule 26 of the Federal Rules of Civil Procedure, the Court joined the Federal Circuit and a majority of district courts in holding that the expert disclosure requirements of Rule 26(a)(2)(B) establish a "bright-line" rule mandating the disclosure of all documents given to testifying experts, specifically including attorney opinion work product.

In affirming the discovery order of the Western District of Kentucky in Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006), the Court expressly relied on the text of Rule 26(a)(2)(B) as amended and on the Advisory Committee Notes from the 1993 amendments to the Civil Rules that added the expert disclosure requirements.

Rule 26(a)(2)(B) as amended requires that, for any "witness who is retained or specially employed to provide expert testimony in the case," the parties are required to disclose, inter alia, "the data or other information considered by the witness in forming the opinions."

Since the 1993 amendments two distinct lines of cases had formed that reached opposite conclusions.  The first, beginning with Haworth Inc. v. Herman Miller Inc., 162 F.R.D. 289, 292-96 (W.D. Mich. 1995), held that attorney work product is not discoverable merely because it had been shared with a testifying expert.  The district court in Haworth concluded that the expert disclosure provisions added by the 1993 amendments did not alter the pre-amendment rule that attorney opinion work product disclosed to testifying experts was immune from discovery.  The Haworth decision was based on the venerable principle of Hickman v. Taylor, 329 U.S. 495, 510-12 (1947)(work product doctrine generally protects from disclosure documents prepared by or for an attorney in anticipation of litigation or for trial), and pre-amendment Sixth Circuit precedent in Toledo Edison Co. v. GA Techs., Inc., 847 F.2d 335, 339-41 (6th Cir. 1988)(Rule 26 categorically excludes the discovery of opinion work product even when provided to testifying experts).  As Haworth stated, "[f]or the high privilege accorded to attorney opinion work product not to apply would require clear and unambiguous language in the statute."  162 F.R.D. at 295.  Finding none, the district court in Haworth declined to depart from the doctrine of absolute privilege that traditionally attached to attorney opinion work product.

The second line of cases, including In re Pioneer High-Bred Int'l. Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001), adopted the contrary view that the 1993 amendment to Rule 26 created a bright-line rule requiring disclosure of all information provided to testifying experts.

The Sixth Circuit determined that the text of Rule 26(a)(2)(B) requires adherence to the second line of cases mandating disclosure, and that, while Rule 26(b)(3) imposes certain limitations on discovery rights and procedures available under the civil rules, it does not address the mandatory disclosure obligations established by the 1993 amendments.

The Sixth Circuit held as follows:

The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes.  Therefore, we now join the "overwhelming majority" of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.

The panel opinion in Regional Airport Authority can be found here.

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