Court Explores the Waiver Implication of Sharing Opinion Work Product with a Testifying Expert

May 31, 2006

Most (but not all) federal courts find that any protected document (including opinion work product) shared with a testifying expert becomes “fair game” for discovery. States take differing positions on this issue ‑‑ usually depending on whether the states changed their expert disclosure rules after a 1993 federal rule change.

In Crowe Countryside Realty Associates, Co. v. Novare Engineers, Inc., 891 A.2d 838, 848 (R.I. 2006), the Rhode Island Supreme Court noted that Rhode Island had not changed its testifying expert disclosure rule, so that “opinion work product is not divested of its absolute protection under Rule 26(b)(3) merely because an attorney shares it with a testifying expert witness.”

Given the high stakes involved, lawyers litigating in state courts should familiarize themselves with the applicable rule.