Presenting a live 90-minute webinar with interactive Q&A Preparing Witnesses for Deposition and Trial: Reconciling Demands of FRCP 26 and FRE 612 Protecting Attorney-Client Privilege and Navigating Work Product Challenges TUES DAY, JUNE 17, 2014 1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific Today’s faculty features: S teven C. Bennett, Partner, Park Jensen Bennett , New Y ork Teresa Rider Bult, Partner, Constangy Brooks & Smith , Nashville, Tenn. Coby Cohen, Assistant General Counsel - Litigation & Employment, Knowledge Universe , Portland, Ore. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800- 926-7926 ext. 10 .
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Preparing Witnesses for Deposition and Trial: Reconciling The Demands of FRCP 26 and FRE 612 June 17, 2014 Strafford Publications 5
Disclaimers • The views expressed are solely those of the presenters and should not be attributed to the presenters’ firms, companies or their clients. • This presentation does not constitute legal advice, nor does it constitute solicitation of an attorney/client relationship. 6
Presenters • Steven C. Bennett • Park Jensen Bennett LLP – New York, NY • sbennett@parkjensen.com • Teresa Rider Bult • Constangy, Brooks & Smith, LLP – Nashville, TN • tbult@constangy.com • C. N. Coby Cohen • Knowledge Universe Education LLC – Portland, OR • ccohen@klcorp.com 7
Agenda • Privilege and work product protection under FRCP 26 • Purpose and Effect of FRE 612 • Informative Case Law under FRCP 26 and FRE 612 Best practices for protecting privilege and work product in witness • preparation 8
Rule 26: Work Product 9
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
Work Product Doctrine • Protects information created in anticipation of litigation – Generally, attorney ’ s mental processes – Specifically, memoranda, analyses, ideas, strategies, etc. that the attorney creates or communicates • 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) 11
Hickman v. Taylor, 329 U.S. 495 (1947) • Origin of work product protection • Concerned a tugboat accident and the statements of witnesses to lawyers • Court held that work product protection was necessary, as it assists lawyers in the proper preparation of their case, stating that lawyers must be able to work with “a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Id. at 510-11. • Rather than disrupt the protection, the adverse party can conduct its own investigation through its own counsel 12
Distinction Between Fact and Opinion Work Product • Fact work product is generally discoverable on a showing of “substantial need” • “Core opinion” work product, namely work product that evidences attorney mental impressions, processes, strategy, etc., is subject to far greater protection and is generally immune from production • See Hickman 13
FRCP 26 (a) (2) – Disclosure of Expert Testimony • “(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703 or 705.” • The three Rules of Evidence apply to expert witness evidence, including testimony (Rule 702), the basis of expert opinions (Rule 703) and the facts and data underlying those opinions (Rule 705). • Sections (B), (C), (D) and (E) establish rules concerning the preparation, distribution and supplementation of expert reports, as well as content of disclosures where reports are unnecessary. 14
FRCP 26(b)(3) –Work Product Protection • “(A) Documents and Tangible Things. Ordinarily, a party may not 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). But, subject to Rule 26(b)(4), those materials may be discovered if: • (i) they are otherwise discoverable under Rule 26(b)(1); and • (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” • Scope of discovery is broad, and this rule is liberally interpreted. 15
FRCP 26(b)(4)- Expert Trial Prep • “(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.” • “(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: • (i) relate to compensation for the expert's study or testimony; • (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or • (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.” 16
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 drafts • Terms of engagement/limits/fees • However, Rule 26(b)(4), since its modification in 2010, explicitly protects most of these communications, except: • Communications about compensation • Communicated facts • Assumptions provided to the expert by the attorney and relied on by the expert 17
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 818821 (S.D.N.Y. 2005) 18
Documents Produced/Identified Must Relate To Expert’s Work • Define by subject matter of report. See American S.S. Owners v. Alcoa S.S. Co., 2006 WL 212376 (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) 19
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 non-testifying consulting expert, potentially subjecting the consulting expert to discovery 20
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