Seyfarth Shaw LLP | November 9, 2015
Introduction
Construction defect cases invariably require the use of experts and other third-parties with specialised knowledge to assist attorneys and clients in numerous ways – namely, in the determination of causation and damages. These third-party experts often generate written reports in which they use their specialised knowledge to offer conclusions and opinions on points of controversy in order to support one side’s claim. When producing a final report, an expert might generate several draft reports that shed light on his or her thought process in reaching a conclusion. In addition, the expert will likely generate notes and other documents that assist in creating the report.
Background
Before 2010, the work product of third-party experts was subject to discovery by adverse litigants based on the 1993 amendment to Federal Rule 26, which required an expert to disclose all of his or her communications with the hiring attorney, including all draft reports. As a result, attorneys and experts would go to great lengths to sidestep the disclosure rule by finding ways to avoid creating a draft report. One such measure was to hire two sets of experts, one for consulting and one for testifying, with only the latter expert’s file being discoverable.
In response to these evasive and costly steps to shield the disclosure of draft reports (which resulted in a landslide of discovery disputes), the federal rule governing expert witness disclosures was amended on December 1 2010 to limit the amount of information that an expert witness must disclose. Among the changes were sub-paragraphs that were inserted at Rules 26(b)(4)(B) and (C) which respectively protect as work product draft reports and certain communications between the expert and counsel.
Although the 2010 amendments to Rule 26 have fostered a more open and dispute-free manner in which attorneys interact with their experts, a growing body of disputes now centres on the purpose for which an expert has been retained. The mere act of retaining an expert who subsequently produces a report does not automatically entitle the draft report to protection under the 2010 amendments. Rather, the draft reports still must qualify for work product protection – that is, the document must:
- be prepared in anticipation of litigation or for trial; and
- be prepared by or for another party, or by or for that other party’s representative.(1)
The Ninth Circuit has referred to documents that are prepared exclusively in anticipation of litigation as ‘single-purpose documents’.(2) Single-purpose documents are always afforded work product protection. A ‘dual-purpose document’ – one that is prepared both in anticipation of litigation and for another purpose – receives more scrutiny.
In order to distinguish between documents created in anticipation of litigation and those created in the ordinary course of business, courts employ a ‘because of’ test, which examines the purpose for which the document was created.(3)
Under this standard, dual-purpose documents are deemed to have been prepared in anticipation of litigation if “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation”.(4)“When there is a true independent purpose for creating a document, work product protection is less likely, but when two purposes are profoundly interconnected, the analysis is more complicated.”(5)
Facts
This analysis was recently performed in Municipality of Anchorage v ICRC,(6) which arose out of the defective design and construction of a major infrastructure project at the Port of Anchorage. Nearly three weeks after filing the lawsuit in March 2013, the Municipality of Anchorage retained an expert to assess the damage that had been done to the project in connection with the litigation and to assist the municipality in the determination of remedial measures and designs to replace the defective project. A few months later, the expert produced a preliminary report. The municipality repeatedly stated its intention to rely on the expert opinions that were contained in the report to support its case in the pending lawsuit.
One defendant in the lawsuit, PND Engineers, Inc, filed a motion to compel seeking, among other things, all drafts of the expert report. Part of PND’s argument for compelling production was that the preliminary report was a dual-purpose document because it was used not only to assess the damage that had already been done to the project, but also to advise the municipality in determining a new structure to be built. In other words, PND argued that there was an independent non-litigation purpose for the preliminary report, which could be separated from the litigation purpose.
Although the court found that the preliminary report was a…