Debate Continues Over the Waiver Effect of Sharing Opinion Work Product with a Testifying Expert

November 16, 2005

After a federal rule change in 1993, most (but not all) federal courts have held that the discovery rule governing experts trumps the work product protection – meaning that any materials litigants share with their testifying experts are fair game for discovery. Because many states did not change their rules in 1993, the debate over this issue continues to rage at the state level.

In Helton v. Kincaid, No. CA2004-08-099, 2005 Ohio App. LEXIS 2621, at *8-9 (Ohio Ct. App. June 6, 2005), an Ohio appellate court noted the debate, and concluded that “[we] agree with those courts who have determined that work product does not lose its protected status simply because it is disseminated to an expert.” Other states have also continued to debate this issue (for instance, Virginia state courts have gone both ways).

One cannot help but pity the poor state court practitioners in states such as Ohio, who are used to successfully claiming work product protection for materials they give their experts in state court litigation – but find to their horror that those materials are fair game for discovery in a federal court across the street.