Most Federal courts cite 1993 Federal Rules changes in requiring a party to produce in discovery all materials provided to a testifying expert (including those otherwise protected by the attorney-client privilege or the work product doctrine). These changes might also affect experts’ duty to retain copies of their draft reports.
In Trigon Insurance Company v. United States of America, 204 F.R.D. 277(E.D. Va. 2001), Judge Payne of the Eastern District of Virginia held that the government’s expert should not have destroyed draft reports, noting that the reports in question “were not solely the product of the experts’ own thoughts and work.” In other words, the drafts reflected communications from the lawyers who hired the expert, and therefore fell within the general rule requiring the production of any materials provided to the expert. Judge Payne found that the expert’s destruction of drafts amounted to improper spoliation. Judge Payne indicated that an adverse inference would be drawn against the United States at the trial, and also awarded Trigon its attorney’s fees incurred in dealing with the spoliation issue.
Given the risks, lawyers should become familiar with the rules governing the fate of testifying experts’ draft reports.