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Republic of Ecuador v. Hinchee

United States Court of Appeals for the Eleventh Circuit · Civil Procedure

Civil ProcedureDiscoveryExpert WitnessesWork-Product DoctrineRule 26Fed. R. Civ. P. 26Rule 26(b)(1)Rule 26(b)(3)(A)

Facts

The Republic sought documents from Dr. Hinchee to use in defending the validity of the Lago Agrio judgment in ongoing treaty arbitration. Chevron and Dr. Hinchee produced many documents but withheld about 1,200 on work-product grounds, including Dr. Hinchee's personal notes and email communications with non-attorneys, primarily other Chevron experts. After in camera review, the district court held that only a draft expert report was protected and ordered production of the remaining documents. The documents at issue on appeal were Dr. Hinchee's own notes and his communications with non-attorneys rather than communications with Chevron's attorneys or their staff.

Issue

Whether Rule 26's work-product protections shield from discovery a testifying expert's personal notes and communications with non-attorneys, including other experts. The case also asks whether the 2010 amendments to Rule 26 changed the scope of discoverable materials from testifying experts so as to protect those materials.

Rule

Under Rule 26, relevant non-privileged materials held by a testifying expert are discoverable unless specifically protected. Rule 26(b)(3)(A)'s general work-product protection does not apply to all materials prepared by or for a testifying expert, and the 2010 amendments protect only draft expert reports and communications between a party's attorney and the expert as set out in Rule 26(b)(4)(B) and (C). Rule 26(a)(2)(B)'s reference to 'facts or data' broadly requires disclosure of material considered by the expert, except for core attorney opinion work product.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a products-liability suit in federal court in Atlanta, Northstar Fabrication designates Maya Rios as a testifying engineering expert. Rios keeps handwritten notes analyzing prototype failure patterns and exchanges emails with two other retained experts about alternate causation theories; no lawyer is included on those messages.

If the plaintiff subpoenas the notes and emails, which is the strongest argument under Rule 26?

Explanation. The majority held that for testifying experts, relevant non-privileged materials are discoverable unless specifically protected by Rule 26(b)(4). The general work-product rule in Rule 26(b)(3)(A) does not extend blanket protection to a testifying expert’s own notes or communications with non-attorneys, including other experts. Only draft reports and attorney-expert communications receive the specific protections recognized in Rule 26(b)(4)(B) and (C).