The Tennessee Court of Appeals has ruled that, given a waiver by plaintiff’s counsel, a defendant may examine materials in the possession of an expert, including communications with the lawyer of the party that hired the expert.
In Starnes v. Alinkaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023), the court ruled plaintiff
waived her claims of privilege or protection for expert witness materials and that the trial court did not abuse its discretion in compelling Ms. Starnes to produce her expert witnesses’ draft reports, notes made in forming opinions, and communications with her counsel. However, we further conclude that the trial court’s order is overly broad in its statement that “none” of the materials sought by Defendants, “not limited to” the foregoing, “are privileged or protected” and must be produced. We accordingly determine that the language of the order should be modified.
Id. at 8.
The court found that the work product protections set forth in Rule 26.02(3) potentially apply to materials in the possession of the expert, but the work product protection can be waived absent timely objection.
The court also found that a “testifying expert witnesses’ notes, draft reports, and communications [with plaintiff’s counsel] requested by Defendants are discoverable under Rule 26.02(4)(A), provided that another privilege does not apply.” Id. at 13 (footnote omitted). Although ““prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means,” a timely objection was required to protect such materials.
Thus, the appellate court modified the trial court’s order to read as follows:
Based upon the filings and argument of the parties, the Court finds the motions well taken and they are GRANTED. Defendants are entitled to discovery of expert witness materials as provided in Tennessee Rule of Civil Procedure 26.02(4)(A)(i) and specific expert witness materials requested in their motions to compel and previously requested through their
interrogatories and requests for production presented to [Plaintiff] Ms. Starnes. As provided in Rule 26.02(4)(A)(i), Ms. Starnes must produce any materials not previously produced concerning the identity of each expert who is expected to testify; the substance of the facts and opinions to which the expert is expected to testify; the opinions to which the expert is expected to testify; a summary of the grounds for each opinion; each witness’s qualifications (including a list of all publications authored in the previous ten years); a list of all other cases in which, during the previous four years, the witness testified as an expert; and a statement of the compensation to be paid for the study and testimony in the case. Additionally, as specifically requested in Defendants’ motions to compel and previously in interrogatories and requests for production, Ms. Starnes must produce copies of testifying experts’ communications with counsel, draft reports, and notes made by the experts. If Ms. Starnes believes that any of the material to be produced contains mental impressions of her counsel, Ms. Starnes may raise any such issue separately by way of a privilege log and/or presentation to the trial court for in camera review.
Id. 17-18
Judges Swiney and Davis concurred, but added that “Tennessee would be well-served by adopting the 2010 amendment to Federal Rule of Civil Procedure 26(b)(4), which protects, with three specific exceptions, draft reports and communications between counsel and trial expert witnesses from discovery.” Concurrence at p. 2.
It is possible that the Tennessee Supreme Court will take up this case and even more likely that the Rules Commission will review the suggestion offered by Justices Swiney and Davis. But the Tennessee Supreme Court will not decide whether to accept this case for review for at least 120 days (add 365+ days if it accepts review) and any action from the Rules Commission will take at least 16 months and maybe 28 months to come into effect. What should trial lawyers do in the meantime?
Judges Swiney and Davis predicted this: “As a result [of the language in the state rule], and certainly after this Court’s opinion, counsel for both defendants and plaintiffs likely will decline to write down their communications with experts and instead rely exclusively on oral communication. Even more concerning, the experts will communicate with counsel only by oral means leaving counsel, likely not a healthcare provider, not having the benefit of what she is told being in a more detailed writing.” Concurrence at p. 1. I agree, and add that appropriate objections will be lodged to expert discovery served by an opponent.
It is also my belief that some interactions with experts must be in writing but, when you communicate in writing with an expert (until a rule change is adopted), you must assume that every communication is potentially discoverable by your opponent.