TO: Joint Procedure Committee
FROM: Andy Forward
DATE: August 4, 2010
RE: Rule 26, N.D.R.Civ.P., General Provisions Governing Discovery
Staff received an email from District Court Judge Donovan Foughty. Judge Foughty attached a copy of a memorandum opinion and order regarding a discovery issue. Judge Foughty said it does not appear the law is clear in North Dakota on what is and what is not privileged between an attorney and an expert witness that might be called at trial. In the case, the plaintiff sought discovery of all communication between the defendant's attorney and his expert, and documents disclosed to the defendant's expert witness. The defendant opposed discovery of the items claiming they contained protected attorney work product.
The memorandum contains discussion noting that Fed.R.Civ.P. 26 was amended in 1993, which added mandatory disclosures on testifying experts. See Fed.R.Civ.P. 26(a)(2). North Dakota did not adopt the 1993 federal amendments dealing with mandatory disclosure. The Committee discussed the federal amendments and agreed that there should not be any automatic disclosures. See Minutes of the Joint Procedure Comm., p. 22 (September 29-30, 1994). In 1995, the Committee adopted an amendment to Rule 26 allowing depositions of expert witnesses without court authorization unless the deposition would be "unnecessary, overly burdensome or unfairly oppressive." See Minutes of the Joint Procedure Comm., pp. 11-12 (January 26-27, 1995).
The memorandum notes many federal courts have held that amended Fed.R.Civ.P. 26(a)(2)(B) requires the production of any document that a party's attorney has given to the expert, concluding that by giving it to the expert the attorney work product doctrine has been waived. The memorandum also states that while the majority of federal courts interpret Fed.R.Civ.P. 26(a)(2)(B) as requiring production of any document regardless of any attorney work product, there are several courts that continue to hold the pre-1993 amendment view that some attorney work product and other previously confidential information shared with an expert need not be disclosed to an opposing party.
The district court agreed that attorney work product, including mental impressions, legal theories and attorney opinion are entitled to protection under N.D.R.Civ.P. 26(b)(4). The court stated that its opinion is in conformity with the text of the rule itself, North Dakota Supreme Court case law, cases from courts within the jurisdiction of the Eighth Circuit, and persuasive authority interpreting the corresponding federal rule similarly. The court allowed discovery of billings and invoices prepared by the defendant's expert, along with a list of discovery documents and materials that the defendant's attorney told his expert to specifically look at after employing the expert's services.
In his email, Judge Foughty did not propose an amendment or request that Rule 26 be amended. His email and attached memorandum opinion pointed out that the law on what is and what is not privileged between an attorney and an expert does not appear to be clear in North Dakota.
The Committee may wish to consider whether it wants to amend Rule 26 to address the issue of privilege between an attorney and an expert witness. A portion of Judge Foughty's memorandum opinion and order is attached along with a copy of Rule 26, as previously amended by the Committee, and Fed.R.Civ.P. 26.