Courts Debate the Waiver Implications of Sharing Opinion Work Product With Testifying Experts

February 18, 2004

Given the frequent use of testifying experts in litigation, one might expect that courts would have reached some consensus on whether a party sharing opinion work product with a testifying expert has waived the protection — rendering the opinion work product fair game to an adversary’s discovery. However, courts continue to disagree.

Even in the federal system (in which every court examines the identical Federal Rule), the court in Lugosch v. Congel, No. 1:00-CV-0784 (NAM/RFT), 2003 U.S. Dist. LEXIS 23502, at *80 (N.D.N.Y. Dec. 16, 2003), explained that “[t]here has been a long and arduous history plaguing” this issue, and that “[d]ivergent views” among federal courts are “plentiful.” The court ultimately concluded that a “bright line” test would be best — under which any information reviewed by a testifying expert is subject to discovery. Other federal courts take exactly the opposite approach. The same debate occurs at the state level. In Smith v. State, No. 3D03-1359, 2004 Fla. App. LEXIS 173, at *8 (Fla. Dist. Ct. App. Jan. 14, 2004), the court rejected the “bright line” test allowing discovery of any material given to a testifying expert — calling it a “novel position, which is totally unprecedented in Florida law.”

Lawyers should not be lulled into thinking that the waiver rule with which they are familiar on their home turf applies in other federal or state courts — for obvious reasons, such inattention could have disastrous results.