Commentary: Discovery of experts' drafts and communications: A non-

The 1993 amendment to the Federal Rule of Civil Procedure governing the pretrial discoverability of opinions of expert witnesses whom a party intends to call at trial, Rule 26(a)(2), has created a new set of issues with respect to what, in addition to the expert's final report, is also discoverable.

Our recent experience with how that rule works in practice prompts us to propose a modest amendment to Rule 26(a)(2) and to caution that, in this instance, Maryland practice does not follow federal practice.

The National Law Journal published a well-researched article earlier this year that discussed the discoverability under the Federal Rules of draft expert witness reports and related comments of counsel and persons assisting the expert in preparing those reports. (Gregory P. Joseph, Expert Spoliation, 26 National Law Journal 24 (Feb 3, 2003), at B7).

Although there are some nuances, the article's bottom line is that these materials are discoverable because they are data or other information considered by the witness in forming [his or her] opinions within the meaning of Federal Rule 26(a)(2)(B).

While Maryland Rule 2-402(e) does not require testifying experts to prepare reports, it does entitle an opposing party to interrogatories probing the nature of the expert's opinion and grants the opportunity to obtain further discovery, by deposition or otherwise, of the findings and opinions to which [the] expert is expected to testify at trial, including any written reports made by the expert concerning those findings and opinions.

That language likely requires production of an expert's report, if there is one. Under either rule, therefore, a party in a civil case in federal district court or in the Maryland circuit courts (or, more to the point, counsel) that fails to preserve and produce an expert's drafts and notes, including communications with counsel and others with respect to the report, takes an unacceptable risk.

Moreover, as long as these materials exist, an opposing party can be expected to request them. If a party receiving such a request cannot produce the materials because, for example, they have been discarded or destroyed, a motion for discovery or evidentiary sanctions may well follow, thereby increasing the cost and aggravation of litigation.

Even under the smoothest and most civil of circumstances, though, notes and drafts once produced provide an easy and irresistible line of cross-examination of the expert in deposition or at trial. Given the chance, who would not impeach an expert and seek to diminish his or her credibility by revealing actual or apparent prior indecisiveness or the influence of the counsel who hired the expert in the formulation of the expert's opinions? The problem with all this is the exceedingly limited probative, as distinguished from rhetorical, value of draft expert reports and the related comments by counsel or others assisting in the preparation of the report.

'Leave no drafts behind'

As any person who has ever written anything of any complexity knows, writing focuses, clarifies, and, yes, changes one's thoughts and how one expresses those thoughts. This means that a draft expert report - just like a draft brief or pleading - will be, by definition, different than the final product. There is, therefore, at least a certain unfairness, if not outright intellectual dishonesty, in using a draft as an impeachment vehicle to challenge the contents of a final report.

Aware of these several issues, lawyers will recognize that (1) they do, in fact, have an obligation to produce draft expert reports, but (2) doing so is undesirable.

As lawyers are ever creative, some lawyers, aided by the magic of word processing technology, will advise their experts to implement a plainly artificial leave no drafts behind policy. This trick works first by telling the expert don't create any drafts and the expert complies with counsel's direction by generating an outline, drafts, and all revisions in one and only one version of the same electronic document. This document is printed only once and that is when the report is completed. This electronic trick means there are, supposedly, no drafts no matter how many times the expert (or others) revised the report.

How, then, does this creative, if ethically challenged, lawyer review and comment on a draft of the expert's report while preserving the myth that no drafts are available to produce in discovery?

Again, technology has the answer: Counsel and the expert huddle around the expert's laptop, or project the document onto a screen, and make edits in that single document, again leaving no discoverable footprints. But lest the reader dismiss this approach as too cute, we completed a trial recently in which the experts retained by a large national firm testified that they and counsel did exactly this.

While electronic sleight-of-hand gimmicks undermine the integrity and reliability of our civil dispute resolution system, the combination of word processing and the current understanding of Rule 26(a)(2)(B) seemingly produces this result.

Make it more honest

To correct this problem, we recommend that the United States Judicial Conference's Committee on Rules of Practice, Procedure, and Evidence consider amending Federal Rule of Civil Procedure 26(a)(2) to provide that draft reports of testifying experts and experts' communications with counsel regarding a report are not discoverable. The Rules Committee of the Maryland Court of Appeals may also wish to study this matter so that state court practice does not go the way of federal practice.

Denying discovery of materials other than the expert's final report would eliminate the supposedly conflicting or inconsistent draft report as a potential - and potentially rich - source of impeachment. Our point, however, is that draft reports are not a particularly valid or intellectually honest impeachment device.

In any event, in this age of electronic documents, we suspect that more and more lawyers will follow the dubious path of our recent adversaries and use the word processing trick to avoid creating discoverable drafts. If we are correct, our proposal would make the process more honest and nothing would be lost.

Ralph S. Tyler and Douglas R.M. Nazarian are partners in the Baltimore Office Litigation Practice of Hogan & Hartson L.L.P., 111 South Calvert Street, Suite 1600, Baltimore, Maryland 21202.

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