Discoverability of Draft Reports Prepared by a Testifying Expert

April 18, 2001

Most decisions discussing the work product doctrine as applied to testifying experts involve materials disclosed to a testifying expert. However, it is worth considering the discoverability of documents prepared by a testifying expert. One recent decision includes a frightening discussion of possible sanctions against a lawyer for the way in which the lawyer dealt with such material.

In W.R. Grace & Co. v. Zotos International, Inc., No. 98-CV-838S(F), 2000 U.S. Dist. LEXIS 18096, at *34 (W.D.N.Y. Nov. 2, 2000), defendant’s lawyer directed that the defendant’s testifying expert discard draft reports the expert had prepared, to “avoid ‘confusion.'” Although the plaintiff’s request for such drafts arrived after they had been destroyed, the court nevertheless found that the defendant “had a duty to preserve and maintain [the expert’s] draft reports for possible disclosure upon Plaintiff’s request.” The court ordered all remaining drafts produced (after redaction of handwritten notes reflecting the lawyer’s opinion work product), and even mentioned a “potential basis” for sanctions.

Materials given to and prepared by testifying experts are often treated differently from materials with which lawyers more frequently work, and all lawyers should know how these special rules might require or prohibit conduct that the lawyer would routinely take in other circumstances.