A P RELIMINARY G LIMPSE INTO THE W ORK -P RODUCT D OCTRINE
When examining the work product landscape, it is crucial to understand its fundamental characteristics and the policies that support it A foundational discussion on this topic should start with the doctrine as established in the case of Hickman v.
In the wrongful death case of Hickman, plaintiffs sought written and oral witness statements, along with various records related to the incident, including those created by defense attorneys The district court's order for production was overturned by
A lawyer must operate with a degree of privacy to effectively prepare a client's case, free from undue interference by opposing parties and their counsel This involves gathering information, distinguishing relevant facts from irrelevant ones, and formulating legal theories and strategies Such confidentiality is crucial for the historical and necessary functioning of legal practice.
The Court emphasized that only "unwarranted" intrusions into an attorney's "files and mental impressions" are condemned, indicating that certain inquiries may be justified under different circumstances Additionally, the Court clarified that work-product immunity serves as a safeguard against "unnecessary intrusion" and "undue and needless interference" from opposing parties.
6 Id at 508 framework of our system of jurisprudence to promote justice and to protect their clients’ interests 7
The Court acknowledged that discovery could occur if relevant and non-privileged facts within an attorney's file are essential for case preparation However, the plaintiff failed to demonstrate the necessity for witness testimony that was readily available from other sources Furthermore, regarding oral testimony from defense counsel, which would reveal personal notes and mental impressions, the Court concluded that no necessity was shown in this case, indicating that different circumstances might allow for such a demonstration.
The Hickman Court's approach to witness statements and counsel's mental impressions influenced the federal rules that shaped Florida's work-product rule This rule differentiates between fact work-product and opinion work-product, although it does not explicitly use these terms Fact work-product consists of documents and tangible items prepared in anticipation of litigation or trial by a party or their representatives, including attorneys and consultants Typically, these materials can only be discovered if the requesting party demonstrates a need for them in case preparation and shows that they cannot obtain similar materials without undue hardship When ordering the production of fact work-product, Florida courts are required to safeguard the disclosure of opinion work-product, which encompasses the mental impressions of counsel.
11 See, e.g., Smith v Fla Power & Light Co., 632 So 2d 696, 698 n.3 (Fla 3d DCA
The Florida rule on attorney work product is similar to the federal rule, allowing district courts of appeal to reference federal case law for guidance Notably, while the federal rule regarding experts underwent significant amendments in 1993, Florida's rule remained unchanged.
According to FLA R Civ P 1.280(b)(3), this article distinguishes between fact work-product and opinion work-product, aligning with the terminology commonly used by Florida courts In contrast, federal courts typically categorize these as ordinary work-product and core work-product.
13 Id.; see also S Bell Tel & Tel Co v Deason, 632 So 2d 1377, 1385 (Fla 1994)
14 Id pressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” 15
The Hickman ruling emphasizes the importance of thorough case preparation while highlighting the tension between protecting work-product and the necessity for mutual knowledge of relevant facts in litigation The court acknowledged that both parties should have access to essential information, allowing for the potential to compel disclosure of facts under certain conditions This tension intensifies when an expert witness relies on work product from counsel, as the offering party is not obligated to disclose the underlying facts or data during trial Such critical information can only be revealed during cross-examination, assuming the cross-examiner is adequately prepared with the necessary background knowledge for effective questioning.
Florida courts face the challenging task of balancing two competing interests regarding the disclosure of work-product in legal proceedings This article examines the complexities involved, starting with the disclosure of fact work-product during trial and discovery, and then addressing the disclosure of opinion work-product in the same contexts.
According to FLA R Civ P 1.280(b)(3), it is important to clarify that the discovery of experts falls under Rule 1.280(b)(4), not Rule 1.280(b)(3) The work-product doctrine outlined in Rule 1.280(b)(3) is explicitly subject to the provisions of subdivision (b)(4) of the same rule This critical distinction is elaborated on in the following sections, specifically in notes 39 and 79-86.
The Supreme Court emphasized in Hickman that protecting an attorney's preparation from discovery is essential for maintaining privacy and ensuring the effective operation of the adversarial system (Smith, 632 So 2d at 698).
The protection of an attorney's mental processes is crucial for the effective operation of the adversary system, as highlighted in the case of 495 So 2d 257, 263 (Fla 3d DCA 1986) If there is a risk that an attorney's work product could be disclosed, even in unrelated cases, it may discourage them from openly documenting their mental impressions, conclusions, theories, or opinions, as noted in Duplan Corp v Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir 1974).
Kathleen Waits critically analyzes the current legal framework surrounding opinion work product, arguing that the justifications for its protection tend to be dogmatic and lacking in substantive support.
18 F LA S TAT §§ 90.704-.705(1) (2002) (Sections 90.704-.705 are reprinted in their entirety in the Appendix of Relevant Rules & Statutes following this Article)
In this article, we explore the significance of Florida Statute § 90.705(1) and its connection to Justice Jackson's assertion in Hickman, emphasizing the importance of discovery in providing access to evidence crucial for a case We also examine the implications of section 90.613 regarding the disclosure of materials that refresh a witness's recollection during testimony Furthermore, we highlight distinctions between civil and criminal proceedings and reference federal authorities for their persuasive influence on Florida law Throughout the discussion, we aim to differentiate between arguments for waiving work-product protections and those asserting their inapplicability, as both concepts are often intertwined Finally, we conclude with a summary of our key observations.
Disclosure of Fact Work-Product at Trial
In the context of expert testimony, it is essential to recognize that if Dr Caligari relied on materials constituting fact work-product to form her opinions, she must disclose the underlying facts or data during cross-examination According to Section 90.705(1) of the Florida Statutes, the expert is obligated to specify these facts or data, which are defined in Section 90.704 as information perceived or made known to the expert before or during the trial Therefore, any information that Dr Caligari relied upon prior to the trial must be disclosed if it forms the basis of her opinion.
Despite the lack of authority evaluating section 90.705 concerning the work-product doctrine, there is no clear justification for interpreting a work product exception within the statute The Fourth District Court of Appeal has aptly observed this situation.
20 Section 90.613 is reprinted in its entirety in the Appendix of Relevant Rules & Statutes following this Article
Section 90.705 allows for inquiry into the facts or data underlying an opinion, while Section 90.704 focuses on the facts or data that an expert uses to form their opinion or inference Although one might argue that the underlying facts are broader in scope, it is reasonable to harmonize these sections, as the underlying data can be considered the basis of the opinion Courts should avoid finding conflicts between these sections when possible, as highlighted in McGhee v Volusia County, which emphasizes the importance of interpreting related statutes together The term "relied upon" is often used to refer to the facts or data that support an expert's opinions, distinguishing it from Section 90.704, which addresses the admissibility of otherwise inadmissible facts or data that experts in a specific field reasonably rely on.
Cross-examination of experts is crucial due to evidence rules that allow them to provide opinions without fully disclosing their foundational bases This limitation means that critical aspects of their testimony can remain unchallenged if cross-examination is restricted, potentially leaving the validity of their views unexamined.
The Fifth District Court of Appeal confirmed the exclusion of expert witnesses from trial due to their refusal to waive attorney-client privilege during depositions regarding the facts and data supporting their opinions The court determined that the experts' reliance on this privilege obstructed a legitimate examination of their opinions, justifying their removal from the trial.
The waiver argument regarding fact work-product suggests that when materials created in anticipation of litigation are disclosed at trial, the Hickman policy of unrestricted preparation is not compromised, as the preparation is complete and the protected work product is voluntarily shared through expert testimony This voluntary disclosure relinquishes the protection typically afforded to such work product If a different approach were taken, it would contradict the principle that documents introduced at trial lose their work-product status and would undermine section 90.705, which allows for cross-examination of experts regarding the facts and data that inform their opinions Preventing inquiry into the fact work-product relied upon by an expert during trial would not support the policies underpinning the work-product doctrine and would conflict with the provisions of section 90.705, which encourages comprehensive cross-examination of expert witnesses.
23 Dempsey v Shell Oil Co., 589 So 2d 373, 379 (Fla 4th DCA 1991)
24 In Stewart & Stevenson Services v Westchester Fire Insurance Co., 804 So 2d 584,
588 (Fla 5th DCA 2002), the court found:
The refusal of attorney experts to respond to inquiries and provide documents hindered the opposing party's ability to reveal the facts or data supporting the experts' opinions Since the party opted to employ attorneys involved in the original proceedings, it was essential for them to secure a waiver of any attorney-client privilege if they planned to present these attorneys as testifying experts.
In the case of Dodson v Persell, the Florida Supreme Court clarified that documents, pictures, statements, and diagrams intended for presentation as evidence do not qualify as work products exempt from discovery under the relevant rule This ruling emphasizes the distinction between work product protection and materials meant for evidentiary use, referencing the precedent set in Surf Drugs, Inc v Vermette.
An expert cannot rely on fact work-product during trial, as doing so would compromise its protected status Consequently, attorneys are permitted and encouraged to question and expose the fact work-product that supports an opposing expert's opinions during cross-examination.
Discovery of Fact Work-Product Underlying an Expert Opinion
The outcome of Dr Caligari's cross-examination could significantly change if conducted during a pretrial deposition rather than at trial The Florida Evidence Code promotes thorough pretrial discovery to facilitate comprehensive cross-examination of experts, as outlined in section 90.705 According to the Law Revision Council Note, the cross-examiner is expected to utilize supporting data and possess essential prior knowledge for effective questioning Additionally, judges have the discretion to mandate preliminary disclosures to enhance the cross-examination process.
The Florida Supreme Court arguably addressed the discoverabil- ity of fact work-product underlying expert opinions in Reaves v
The Reaves case addressed the exclusion of letters containing work product exchanged between a prosecutor and an expert witness The opinion did not clarify whether the work product was factual or opinion-based, but suggested it was likely opinion work product Ultimately, Reaves upheld the exclusion of these letters as "privileged and not subject to discovery," without citing any authority or providing further details Consequently, the ruling does not clarify the discoverability of factual work product that an expert relies on for their opinion, leaving the issue unresolved.
While Reaves may suggest limitations on the discoverability of factual work-product beyond criminal cases, we respectfully disagree with this interpretation for reasons that will be clarified shortly.
27 F LA S TAT A NN § 90.705(1) (1999) (Law Revision Council Note, 1976)
The court's reference to "work product" lacks clarity, as it does not define what it means by "privileged." This term can imply a privilege that might be overridden with sufficient justification or indicate that the material is completely undiscoverable Consequently, it remains unclear whether the letters in question are classified as fact work-product or opinion work-product.
In the Reaves case, the letters in question were either fact work-product or, at the very least, opinion work-product Although Reaves briefly addressed the issue, it affirmed that opinion work-product is protected from discovery.
In the context of criminal proceedings, the discoverability of opinion work product that forms the basis of an expert opinion during depositions is examined This topic is discussed in detail in the following sections, specifically in notes 93-95.
A case easily mistaken as dispositive on this issue is Whealton v
In the Whealton discovery process, the document requested was an internal memorandum from the law firm, which contained counsel's opinions on potential liability theories, expert references, and summaries of the patient's medical records Notably, the case did not include materials provided by a party to its expert.
Whealton establishes that factual work-product containing expert opinions is discoverable, provided that the requirements of the need and undue hardship test outlined in Rule 1.280(b)(3) are met.
In civil litigation, the discovery of materials supplied to experts in anticipation of litigation is crucial, as outlined in Florida Rule of Civil Procedure 1.280(b)(4) This rule allows for the discovery of "facts known and opinions held by experts" that were developed for trial purposes Additionally, Rule 1.280(b)(3) defines fact work-product as materials prepared in anticipation of litigation, and it explicitly acknowledges that the discovery provisions for expert opinions take precedence Thus, Rule 1.280(b)(4) emphasizes the importance of accessing expert-related materials, reinforcing the necessity for transparency in the litigation process.
The case examined summary opinion notes created by an expert, which were found to be protected under the medical malpractice presuit investigation statute, and therefore, were not evaluated under the work-product doctrine.
35 Id (citing State v Rabin, 495 So 2d 257, 263 (Fla 3d DCA 1986)) The matters constituting opinion work-product remained inviolate, of course
38 Id at 1.280(b)(4); see also Southern Bell Tel & Tel Co v Deason, 632 So 2d
1377, 1385 (Fla 1994) But see Fields v Cannady, 456 So 2d 1208, 1208 (Fla 5th DCA
In the case of 1984, it was determined that work-product is not subject to discovery if it is not clearly indicated in the expert's deposition that the work-product information was utilized in forming their opinion testimony, as highlighted by a split panel opinion.
The pre-1993 federal rule sparked significant debate regarding the interpretation of the phrase “[s]ubject to the provisions of subdivision (b)(4),” leading to a split among federal courts on whether it applied solely to fact work-product or also to opinion work-product This issue highlights the emphasis the Law Revision Council placed on comprehensive pretrial discovery of the factual basis behind expert opinions Additionally, while the “need and undue hardship” requirement for accessing fact work-product is outlined in 1.280(b)(3), it is absent in 1.280(b)(4), indicating that discovery of fact work-product shared with an expert is inherently permissible without the necessity of demonstrating need or hardship.
In addition to the straightforward language of Rule 1.280(b)(4), there exists a more complex yet persuasive argument for the pretrial discovery of fact work-product utilized by experts, applicable to both civil and criminal proceedings This analysis navigates through relevant statutes and procedural rules, beginning with Rule 1.280(b)(4), which permits the discovery of facts and data known to experts only as specified within the rule Specifically, Rule 1.280(b)(4)(A)(ii) allows for the deposition of a testifying expert in accordance with Rule 1.390, which states that expert testimony can be taken before trial following deposition rules outlined in Rule 1.310 Furthermore, section 90.705(1) of the Florida Statutes mandates that experts must disclose certain information during cross-examination Notably, the relationship between fact work-product and the provisions of Rule 1.280(b)(4) has been clarified in case law, establishing that any facts provided to an expert, even by an attorney, must be disclosed, as highlighted in B.C.F Oil Ref., Inc v Consol Edison Co of N.Y.
40 F LA S TAT A NN § 90.705 (1999) (Law Revision Council Note, 1976) See also
Under Florida Civil Procedure, parties are allowed to discover the facts and opinions of experts expected to testify at trial, provided that these are relevant and not privileged This includes information developed in anticipation of trial, ensuring that all admissible expert insights can be accessed during the legal process.
According to P RACTICE & P ROCEDURE § 16-3.1, parties can now obtain both factual information and opinions from experts expected to testify at trial, provided that these insights are relevant to the case and not protected by privilege, regardless of whether they were created in anticipation of litigation or for trial purposes.
Conclusions Regarding Fact Work-Product
Disclosure of Opinion Work-Product at Trial
In the landmark case Gore v State, the Fourth District Court of Appeal ruled that two letters shared between the defendant's attorney and a testifying mental health expert constituted opinion work-product and were therefore protected from discovery The letters included a detailed twenty-two page summary of the defendant's testimony from a related case and a five-page chronology of events The court also referenced section 90.705, which allows for cross-examination regarding the "facts or data" that form the basis of an expert's opinion, clarifying that this section does not extend to opinion work-product.
“allow the prosecutor to find out before trial precisely what the de- fendant’s lawyer has told his expert witness.” 53 The court did not say
An important consideration is whether the facts known to an expert, which support their opinion, are restricted to the facts themselves or include the source documents in their possession Additionally, it's worth examining if this distinction changes depending on whether the documents are obtained during a deposition or at trial.
The application of section 90.705 during depositions, as upheld in Stewart & Stevenson, aligns with the intent of the Code, allowing for vigorous cross-examination in both civil and criminal cases This provision assumes that cross-examiners can present supporting data and suggests that the production of relevant documents may be compelled during trial The Florida Supreme Court's decision in Gore further reinforces this by distinguishing it from Johnson v State, where extensive cross-examination of a mental health expert was deemed appropriate to assess the validity of the expert's opinion Consequently, since the documents in Gore were prepared by defense counsel, they could be disclosed during trial cross-examination.
The Gore opinion restricts pretrial discovery of opinion work-product shared with testifying experts by defense counsel in capital criminal cases, suggesting that these issues may be appropriately addressed during trial According to section 90.705, such information should be admissible at trial, as it does not include a work-product exception regarding a litigant's right to question the facts and data supporting an expert's opinion during cross-examination This understanding aligns with the original intent of the work-product doctrine established in Hickman.
Hickman Court aimed to prevent unwarranted attempts to obtain written statements, private memoranda, and personal recollections created by an opposing party's counsel during legal proceedings Effective cross-examination relies heavily on eliciting opinions, and judges possess the discretionary authority to mandate preliminary disclosures Further discussion on the pretrial discoverability of opinion work-product is provided below.
54 Gore, 614 So 2d at 1115 (“If anything, it [section 90.705] delays such a disclosure until the witness is in court and testifying at the trial or proceeding.”) (dicta)
56 Gore, 614 So 2d at 1114 (quoting Johnson, 608 So 2d at 10-11)
57 Id at 1115 (dicta) See also Johnson, 608 So 2d at 10-11; Jones v State, 612 So
In Parker v State, 476 So 2d 1370, 1374 (Fla 1992), the court ruled that the defense's cross-examination allowed for the admission of expert testimony based on Jones' background, indicating that the court acted appropriately in permitting this evidence.
134 (Fla 1985) In Smith v State, 26 Fla L Weekly D798, D798 (Fla 3d DCA Mar 19,
In the case of Smith v State (2001), vacated on rehearing in 2002, the court differentiated its ruling from Parker, noting that it involved trial testimony rather than deposition testimony Smith relied on Gore to argue that section 90.705 does not apply to deposition testimony, a view we contest Even if section 90.705 were applicable to deposition testimony in criminal cases, the work-product exception in Florida Rule of Criminal Procedure 3.220(g)(1) would prevent probing into the opinion work-product that forms the basis of a testifying expert's opinion Notably, the Smith panel later granted rehearing, vacated its previous opinion, and denied certiorari without further comment.
In Hickman v Taylor, the Supreme Court emphasized the need to protect attorneys' work-product from unwarranted inquiries, but Florida courts recognize the essential role of thorough cross-examination, especially regarding expert witnesses Effective cross-examination is not only permitted but encouraged under section 90.705 By the time of trial, an attorney's litigation strategy has largely been established through the expert's testimony, creating a balance between the unfolding strategy and the risk of the expert merely echoing the attorney's perspective on the case.
The protection of work product is justified primarily during the development of legal information; however, once these materials are created, there is no valid reason to protect their further use unless it constitutes work product itself Sharing work product with a testifying expert serves two main purposes: to inform the expert about factual elements of the case that could impact their opinion, or to sway the expert towards supporting the counsel's legal theory Importantly, neither of these actions contributes to the creation of legal information.
In the case of Gray v Russell Corp., the First District Court of Appeal upheld the decision of a hearing officer to exclude an expert's testimony The court determined that the expert's reliance on statistical data, which was compiled by an attorney's office without critical analysis, was inappropriate and did not meet the necessary standards for admissibility.
59 See, e.g., Dempsey v Shell Oil Co., 589 So 2d 373, 378-79 (Fla 4th DCA 1991)
61 Lee Mickus, Discovery of Work Product Disclosed to a Testifying Expert Under the
1993 Amendments to the Federal Rules of Civil Procedure, 27 C REIGHTON L R EV 773, 785
In the case of United States v Nobles, the Supreme Court emphasized that the concerns of the work-product doctrine persist even after a trial begins However, this principle is less compelling when the work-product is presented to an expert and subsequently transformed into testimony during the trial While a lawyer’s mental impressions are typically protected throughout the trial, they become relevant when expressed as expert testimony Cross-examination of this testimony is not only appropriate but also essential, as it enables the jury to critically evaluate the evidence, fulfilling their primary role in the judicial process.
Effective cross-examination is crucial for identifying flaws in an expert's opinions, as it prevents manipulation of expert testimony When an expert acts merely as a spokesperson for legal counsel, the work-product doctrine should not protect the underlying theories intended for presentation to the jury The United States Court of Appeals for the Federal Circuit has emphasized the importance of transparency in such situations.
Permitting counsel to share core work product with a testifying expert raises concerns about fairness in legal proceedings, as it may lead to privileged information being disclosed to the opposing party This situation implies that any disclosure made to a testifying expert can be viewed as a waiver of privilege, similar to other forms of disclosure, thus undermining the confidentiality of sensitive materials.
The importance of transparency regarding expert opinions is even more critical during trials, as juries must be aware of all factors influencing an expert's credibility, including any attorney influence on those opinions Florida's Evidence Code supports this concept by promoting robust cross-examination, a principle upheld by Florida courts as well.
63 Id at 314-15 (noting also that the expert had collated statistical data based upon the manner in which counsel had “characterized” certain subjects of the expert’s statistical analysis)
In the case of *In re Pioneer Hi-Bred Int’l, Inc.*, the Federal Circuit emphasized that a criminal defendant cannot invoke the work-product doctrine to justify a one-sided use of work-product materials, similar to how they cannot choose to testify in their own defense while simultaneously claiming the Fifth Amendment privilege against cross-examination on related topics This underscores the limitations of the work-product doctrine in legal proceedings.
Discovery of Opinion Work-Product Underlying an Expert Opinion
The challenge of uncovering opinion work-product during discovery is significant, as discovery typically encompasses a broader scope than trial admissibility Notably, the Gore case established that while opinion work-product can be presented at trial, it cannot be accessed during pretrial depositions The court emphasized that Section 90.705 does not permit prosecutors to ascertain what a defendant's attorney has communicated to their expert witness prior to trial Additionally, the Florida Supreme Court in Reaves classified unspecified "work-product" materials as privileged and exempt from discovery, a ruling echoed in Smith v State.
The court referenced Gore to assert that section 90.705 does not grant the right to pretrial disclosure of the underlying facts of an expert's opinion It emphasized that revealing these materials could expose the attorney's judgment in selecting key documents, which contradicts the principle that a collective set of documents is protected from discovery Additionally, the court sidestepped a conflicting ruling in Eller Media v State, as the circumstances in that case differed.
In the context of criminal law, while section 90.705 pertains to expert depositions, it is important to note that criminal procedural rules, particularly Rule 3.220(g)(1), may restrict the discovery of opinion work-product prior to trial.
In the capital criminal cases of Reaves v State and Gore, the disclosure of defense materials played a significant role, highlighting the high stakes involved Although neither decision explicitly linked this circumstance to its ruling, the nature of these cases sets them apart from typical legal proceedings.
Gore might not have been immune from considering this sub silentio
72 26 Fla L Weekly D798, D798 (Fla 3d DCA Mar 19, 2001), vacated on reh’g, 823
75 Id (quoting Smith v Fla Power & Light Co., 632 So 2d 696, 697 (Fla 3d DCA
The rule against disclosing discrete groups of documents stems from concerns that such organization may inadvertently expose opinion work-product, which includes an attorney's thought processes and legal analysis (State v Williams, 678 So 2d 1356, 1358) If opinion work-product is deemed discoverable, the argument for keeping documents discrete loses significance, as there is nothing to safeguard Conversely, if opinion work-product is protected, there may be valid concerns regarding the disclosure of extensive fact work-product shared with an expert These scenarios should be evaluated individually; however, it is important to recognize that any strategies of the attorney are likely to be revealed through the content of the expert’s testimony regardless.
In the case of 76 770 So 2d 1238 (Fla 3d DCA 2000), the court denied certiorari regarding an order that compelled the disclosure of similar materials, indicating that Eller Media does not serve as binding precedent Smith reaffirmed the principle established in Gore, which states that during pretrial discovery, a party cannot access materials shared by opposing counsel with their testifying expert if such materials would disclose opinion work-product However, it's important to note that the Third District later vacated Smith upon rehearing, although the reasons for this decision were not specified by the court.
Federal courts have historically been divided on the discovery of opinion work-product, but the 1993 amendments to Rule 26 seem to have settled this debate in favor of disclosure The pre-1993 discussions surrounding Rule 26 are particularly relevant to Florida’s current rule Notably, both the Advisory Committee’s Note to Federal Rule of Evidence 705 and the Law Revision Council Note to section 90.705 of the Florida Statutes acknowledge the importance of pretrial discovery in understanding an expert witness's basis for their opinions.
78 Smith v State, 823 So 2d 145, 145 (Fla 3d DCA 2002)
79 F ED R C IV P 26(a)(2), (b)(4); see also F ED R C IV P 26 advisory committee’s note:
Litigants can no longer claim that materials provided to their experts for forming opinions are privileged or protected from disclosure during testimony or depositions.
In the case of Oneida, Ltd v United States, a division among federal courts regarding the discoverability of "opinion" work product, also referred to as "core work product," presented to testifying experts has been noted However, the prevailing trend among federal authorities leans towards favoring disclosure of such materials, as illustrated in Herman v Marine Midland Bank.
Disclosure of privileged or protected material to a testifying expert is considered a waiver of that privilege, similar to other disclosures While there may be contrary opinions, most district courts in this Circuit and beyond align with the Federal Circuit's ruling that the expert disclosure requirement outlined in Rule 26(a)(2)(B) takes precedence over the substantial protections typically granted to opinion work product under Rule.
Id.; In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370, 1375-76 (E.D Mo 2001):
Permitting counsel to share core work product with a testifying expert and then denying discovery to the opposing party serves no discernible interests Disclosure of privileged or protected material to a testifying expert in connection with their testimony inherently implies that such information will be made public, thereby resulting in a waiver to the same extent as any other disclosure.
Id (citations omitted); William Penn Life Assur Co of Am v Brown Transfer & Storage
In the case of Co v 141 F.R.D 142, 143 (W.D Mo 1990), the court emphasized that without access to certain materials, the opposing party cannot thoroughly investigate how counsel's comments influenced the expert's opinion, hindering effective cross-examination This highlights the importance of transparency in expert testimonies, as it allows for proper scrutiny and potential challenges to the expert's credibility Consequently, courts have focused on the necessity of providing relevant information to ensure fair legal proceedings.
Prior to the 1993 Amendments to Rule 26, courts faced the challenge of reconciling the work product rule under Rule 26(b)(3) with the expert discovery rule outlined in Rule 26(b)(4) when deciding whether to disclose work product materials to experts.
The confusion regarding the phrase "[s]ubject to the provisions of subdivision (b)(4) of this rule" centers on its applicability within the work product rule It raises the question of whether this phrase pertains solely to the first sentence, which states that materials prepared in anticipation of trial are discoverable only upon demonstrating need, or if it also extends to the second sentence, which asserts that an attorney’s mental impressions are not discoverable despite a substantial need If the phrase applies only to the first sentence, then the opinion work product rule remains unaffected by subdivision (b)(4), meaning that such materials shared with experts are not discoverable under subdivision (b)(3) However, if the phrase applies to both sentences, then the expert discovery rule takes precedence, rendering opinion work product provided to experts discoverable.
Florida's Rule 1.280(b) presents a complex issue that remains unaddressed by state courts, reflecting a broader divide among federal courts While some may argue over the implications of this rule, the federal system ultimately resolved these debates through an amendment that clarified or corrected the original intent A key takeaway from this federal experience is that the discovery rule does not inherently prevent access to opinion work-product from expert witnesses From a policy standpoint, this raises important considerations regarding the opinion work-product doctrine.
80 Oneida, 43 Fed Cl at 619 (citing 8 C HARLES A LAN W RIGHT ET AL , F EDERAL
83 See generally Oneida, 43 Fed Cl at 618-19 State courts examining similar rules in other states have likewise split Compare McKinnon v Smock, 445 S.E.2d 526, 528 (Ga
1994) (examining Georgia discovery rule and concluding “that (b)(3) is ‘subject to’ (b)(4) only to the extent of the first sentence of (b)(3)”), with Tracy v Dandurand, 30 S.W.3d 831,
835 (Mo 2000) (reading Missouri’s rule (b)(4) “to require production of all of the materials provided to the expert”)
Conclusions Regarding Opinion Work-Product
R EFRESHING R ECOLLECTION
An unexplored aspect of the expert work product landscape involves whether witnesses are required to disclose work-product materials used to refresh their recollection during depositions or trials This issue has sparked considerable litigation within the federal system, resulting in various interpretations In Florida, section 90.613 of the Florida Statutes addresses this matter, outlining specific guidelines regarding the disclosure of such materials.
During testimony, if a witness refers to a document or item to refresh their memory, the opposing party has the right to request the production of that item at the hearing This allows them to inspect it, cross-examine the witness regarding it, and introduce relevant portions of the document into evidence.
The trial judge has the authority to exclude parts of written materials that are not relevant to the testimony According to Florida's rule, this applies solely to documents or items used to refresh a witness's memory during their testimony, and it seemingly allows the opposing party the right to review and cross-examine these documents.
The unqualified right to review and cross-examination under the Evidence Code suggests that, at least as to materials referred to
During testimony, both factual and opinion work-product must be disclosed if they are used to refresh a witness's recollection, as Section 90.613 does not provide a work-product exception This omission indicates that such an exception was not considered necessary Additionally, for expert witnesses, Section 90.705 allows for comprehensive cross-examination, subject only to the limitations set by Section 90.403 Together, these sections imply a strong entitlement to disclosure in legal proceedings.
96 See generally Alfreda Robinson, Duet or Duel: Federal Rule of Evidence 612 and the Work-Product Doctrine Codified in Civil Procedure Rule 26(b)(3), 69 U C IN L R EV
197, 197-98 (2000) (collecting and analyzing federal cases)
97 The trial judge enjoys broad discretion to permit or deny review and cross- examination with respect to materials used to refresh recollection prior to testifying during deposition or at trial See, e.g., Merlin v Boca Raton Comm Hosp., Inc., 479 So 2d 236,
239 (Fla 4th DCA 1985); Francis v State, 343 So 2d 932, 933 (Fla 3d DCA 1977) See generally E HRHARDT , supra note 50, § 613.1
98 The section 90.403 balancing analysis may afford some flexibility that is otherwise lacking in the letter of section 90.613 with respect to matters used to refresh recollection while testifying at trial or during deposition Disclosure of fact work-product would seldom prove prejudicial given that all expert testimony is in some sense fact work-product, i.e., it ment to disclosure of any matter, including fact and opinion work- product, relied upon by an expert to refresh recollection while testify- ing 99
In the case of Merlin v Boca Raton Community Hospital, the Fourth District Court of Appeal addressed the contentious issue of whether a defense attorney could access a plaintiff's handwritten notes, created with the intent of hiring legal representation Although the plaintiff reviewed these notes during his wife's deposition, he asserted they did not aid his memory The trial judge ruled in favor of the defendant, compelling the production of the notes for further deposition The Fourth District clarified that notes used to refresh a witness's memory outside of actual testimony may be disclosed at the trial court's discretion, but such notes are not discoverable if they are privileged The court highlighted that while facts and opinions gathered in anticipation of litigation are generally discoverable, the sensitive nature of an attorney's mental impressions and strategies could limit the disclosure of opinion work-product This lack of clarity in law may stem from the rarity of experts relying on opinion work-product to refresh their recollection during testimony, although discussions or document reviews during testimony breaks could be relevant during cross-examination.
99 An expert seldom refreshes recollection during trial by reference to opinion work- product The issue apparently has not arisen often enough to reach the reported decisions The Third Circuit offered a bit of dictum on the issue: “Even assuming that [Federal Rule of Evidence 612] applies to documents shown before trial to an outside expert, the purposes of Rule 612 are generally fully served without disclosure of core work product.” Bogosian v Gulf Oil Corp., 738 F.2d 587, 595 n.3 (3d Cir 1984)
103 Id at 239 Also relevant is the case of Scotchel Enterprises v Velez, 455 So 2d
In the case of 1129 (Fla 4th DCA 1984), an attorney requested an incident report that the deponent had read during a deposition, which was provided to the defendant’s insurance adjuster The court ruled that the document was not used to refresh recollection due to the significant time gap between its reading and the deposition Furthermore, the court examined the discoverability of the document under the fact work-product doctrine and remanded the case for further evaluation It clarified that the fact work-product is not automatically protected from review under section 90.613, as the court determined that this section was not applicable Instead, the request for the document was treated as a discovery request for fact work-product, independent of any issues related to section 90.613.
104 Merlin, 479 So 2d at 239 As with the Reaves decision, discussed supra in the text accompanying notes 28-32, it is not clear what was meant by the term “privileged” in the
The Merlin court addressed the attorney-client privilege, ultimately quashing the discovery order based on this privilege The court emphasized the genuine privilege that exists between attorney and client While work-product protection is frequently labeled as a privilege, it is more accurately described as a qualified immunity from disclosure, distinct from the statutory nature of the attorney-client privilege, as highlighted in Hickman v Taylor, 329 U.S 495, 509-10 (1947).
The Fifth District Court of Appeal issued a decision in Watkins v Wilkinson that may conflict with or clarify the Fourth District's ruling in Merlin The court determined that materials used to refresh a witness's recollection do not qualify as work product However, if these documents had been classified as fact work-product, they could be discoverable under section 90.613 if the opposing party demonstrated a need and an inability to obtain similar information without undue hardship It's important to note that Watkins involved a lay witness, and the fact work-product provision in Rule 1.280(b)(3) would apply if the documents were deemed work product, necessitating proof of need and hardship In contrast, an expert using fact work-product materials would not receive the same protections, as Rule 1.280(b)(4) allows for the discovery of fact work-product without additional requirements.
The footnote observation in Watkins aligns with the general rules for discovering fact work-product materials While it is somewhat of a dictum, the language in Watkins provides more clarity than the vague comment in Merlin that “otherwise privileged” documents would remain undiscoverable The Merlin court seemingly used the term “privileged” specifically regarding attorney-client privilege, rather than in the broader context of work-product immunity, which underpins its final decision.
Watkins are not inconsistent and would not protect an expert from having to disclose all fact work-product relied upon to refresh recol-
Rule 26 and other discovery rules do not allow for the production of work-product in this context, not due to privilege or irrelevance, but because it seeks to obtain written statements and personal recollections from an opposing party's counsel without necessity or justification This practice is outside the scope of discovery and undermines the public policy that supports the orderly prosecution and defense of legal claims.
Discovery should not undermine the confidentiality between attorney and client, as noted in Jackson's concurring opinion However, the current situation involves neither evidence nor privileged communication Additionally, Rules 1.280(b)(3) and 1.280(b)(5) do not mention a work-product "privilege," with Rule 1.280(b)(5) clearly differentiating between privileged material and trial preparation material Although it may be too late to clarify these distinctions, the lack of precision has led to unnecessary confusion surrounding the term "privilege."
106 See id at 718 n.1 (citing S Bell Tel & Tel Co v Deason, 632 So 2d 1377, 1385
107 See supra text accompanying notes 27-49
109 See supra text accompanying note 104 lection while testifying at deposition or, within the trial court’s dis- cretion, relied upon to refresh recollection prior to deposition 110
Merlin and Watkins did not question the relevance of section 90.613 to deposition testimony, suggesting that civil procedural rules may enhance the ability to obtain work product Specifically, Rule 1.280(b)(3) is subordinate to Rule 1.280(b)(4), which limits the assertion of fact work-product immunity and potentially restricts the opinion work-product doctrine Additionally, the analysis under section 90.705 allows for comprehensive cross-examination during depositions, depending on whether materials used to refresh an expert's recollection are classified as known facts or data It is reasonable to argue that any document an expert relies on to refresh their memory during a deposition qualifies as a fact "known" for civil discovery purposes, making it discoverable regardless of section 90.613 Furthermore, section 90.403 does not apply during depositions, allowing for the disclosure of opinion work-product without the risk of unfair prejudice.
C ONCLUSION
We may return now to Dr Caligari who has obliged us for the du- ration of this Article, awaiting your objection Might you make one?
Challenging such questioning is essential, as the Evidence Code and procedural rules are designed to ensure comprehensive cross-examination of experts during both trials and depositions Ultimately, our findings can be succinctly summarized as follows:
Fact WP Relied Upon by
Opinion WP Relied Upon by Expert Y Y (authors);
Fact WP to Refresh Recol- lection Y Y
Fact WP Relied Upon by
Opinion WP Relied Upon by Expert Y N **
Federal courts have reached varying conclusions regarding the analysis of opinion work-product, particularly in the discovery context, where Florida courts offer some protection—though this may be challenged by cases like Reaves and Gore A careful examination of the relevant statutes and rules indicates that significant questions remain unresolved, especially regarding the production of opinion work-product Therefore, practitioners are advised to adopt a proactive approach by thoroughly understanding what they can learn from opposing experts and shaping future interactions with expert witnesses accordingly.
* Subject to any specific limitations set out in the criminal procedural rules See su- pra text accompanying note 46
** Though a judge conceivably could order discovery of any matters, including opin- ion work-product, pursuant to Rule 3.220(f)
APPENDIX OF RELEVANT RULES &STATUTES
Fla R Civ P 1.280 General Provisions Governing Discovery
(b)Scope of Discovery Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
In trial preparation, parties can discover documents and tangible items created in anticipation of litigation only if they demonstrate a need for these materials and cannot obtain similar items without undue hardship The court will protect the mental impressions and legal theories of attorneys during this process A party can access previously made statements about the case without needing to show necessity, and non-parties can request copies of their own statements as well If such requests are denied, they may seek a court order to obtain the documents, with applicable rules governing any incurred expenses A previously made statement is defined as a signed written statement or a recording that accurately reflects an oral statement made at the time.
In trial preparation, parties can discover facts and opinions held by experts that are relevant to litigation According to subdivision (b)(1) of the rule, this information can be obtained through interrogatories A party may require the opposing party to identify each expert witness they plan to call at trial, along with the subject matter of their testimony Additionally, the opposing party must provide a summary of the facts and opinions the expert will present, including the grounds for each opinion.
Individuals identified through interrogatories or other means as potential expert witnesses for trial can be deposed in accordance with rule 1.390, without the need for a motion or court order.
(iii) A party may obtain the following discovery regarding any per- son disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
1 The scope of employment in the pending case and the compensa- tion for such service
2 The expert’s general litigation experience, including the per- centage of work performed for plaintiffs and defendants
3 The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial
4 An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be re- quired to disclose his or her earnings as an expert witness or in- come derived from other services
In exceptional circumstances, an expert may be required to provide financial and business records, but they cannot be forced to create or produce documents that do not exist The court has the authority to order additional discovery through alternative means, while imposing restrictions on the scope and related fees and expenses as deemed appropriate under subdivision (b)(4)(C) of this rule.
A party can uncover information or opinions from an expert hired by another party in anticipation of litigation or trial preparation, provided that this expert is not expected to testify at trial, in accordance with the relevant rules.
1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means
Fla R Civ P 1.310 Depositions Upon Oral Examination
(c) Examination and Cross-Examination; Record of Examination;
Depositions involve the examination and cross-examination of witnesses, conducted under oath by an officer The officer must record the witness's testimony, either stenographically or through other approved means If a deposition is taken by telephone, an authorized person present with the witness will administer the oath Any party may request a transcription of the testimony, with costs initially borne by the requesting party Objections to the deposition process must be noted by the officer and stated concisely, while a party may instruct a deponent not to answer only to preserve a privilege or enforce court limitations Additionally, parties may submit written questions to be asked by the officer, ensuring that all responses are recorded verbatim.
Fla R Civ P 1.390 Depositions of Expert Witnesses
An "expert witness" is defined as an individual who is actively engaged in a specific profession, holds a relevant professional degree from a recognized university or college, and has received specialized training and experience This person possesses unique knowledge or skills pertinent to the subject matter for which they are called to provide testimony.
Expert witness testimony can be collected at any time prior to trial, following deposition rules, and is permissible for use during the trial regardless of the witness's location or distance from the court There is no requirement for special notice regarding the use of the deposition in the trial.
(d) Applicability Nothing in this rule shall prevent the taking of any deposition as otherwise provided by law
(f) Additional Discovery On a showing of materiality, the court may require such other discovery to the parties as justice may re- quire
(g) Matters Not Subject to Disclosure
Legal research and documents such as records, correspondence, reports, or memoranda do not need to be disclosed if they include the opinions, theories, or conclusions of the prosecuting or defense attorney and their legal teams.
After a charging document is filed, any party involved may conduct an oral deposition of an authorized individual The party initiating the deposition must provide reasonable written notice to all other parties and make a sincere effort to coordinate the scheduling of the date, time, and location.