Guise, Contrivance, or Artful Dodging?:1 the Discovery Rules Governing Testifying Employee Experts

The technique of playing the cards close to the vest and hoping by surprise or maneuver at the trial to carry the day, whether or not right and justice lies on the side of one's client, won't be tolerated. It was and is great sport, but hardly defensible as a system for determining causes according to truth and right. In pretrial procedure, made effective through a precedent broad discovery practice, lies the best answer yet devised for destroying surprise and maneuver as twin allies of the sporting theory of justice. .. .2 I. SUMMARY This article discusses the rising use of employees as testifying experts in litigation and the Federal Rules of Civil Procedure that affect expert discovery, particularly Federal Rule of Civil Procedure 26 (Rule 26). Several provisions of Rule 26 allow litigants to gain a strategic advantage over opponents when employees are called to offer expert testimony. For example, Rule 26(a)(2)(B) exempts employee experts from producing written expert reports. Conflicting language in subdivisions 26(a)(2)(B), 26(b)(3), and 26(b)(4) allows litigants to assert the attorney-client privilege and work-product doctrine on behalf of employee experts to shield production of communications, documents, and other information that would be discoverable if the testifying expert were not an employee. This disquieting trend contravenes the spirit and intention of the 1970 and 1993 amendments to the Federal Rules of Civil Procedure that made expert discovery accessible to aid meaningful cross-examination.3 Despite the inherent inequity of allowing testifying experts to withhold discovery, courts do not agree whether employee experts are required to submit the written reports mandated by Rule 26(a)(2)(B). In addition, while it is generally accepted that the attorney-client privilege and work-product doctrine may not be asserted on behalf of independent (non-employee) experts, the application of these privileges to employee experts is in dispute. Because courts have not addressed these issues uniformly, reexamination of Rule 26 is needed to determine whether all testifying experts should be subject to the same disclosure requirements. If the motivation behind the amendments to Rule 26 is to remove the element of unfair surprise4 at trial, then subdivision 26(a)(2)(B) must be amended to clarify that employee experts fall within the purview of Rule 26. Revisions to Rule 26 also may be required to address the applicability of certain privileges to employee experts. Until this is done, there is likely to be an explosion in the use of employees as testifying experts in litigation. This will impede both the fact-finding process and effective cross-examination. Part I of this article discusses the importance of expert testimony, and it identifies various ways that employee experts are evading discovery and the various interpretations of Rule 26 that impact the ability of a party to obtain expert discovery from an employee expert. Part II discusses the relevant 1970 and 1993 amendments to the Federal Rules of Civil Procedure that made expert discovery uniformly available and gave rise to the issues discussed herein. Part III analyzes the reporting requirements of Rule 26(a)(2)(B) and reviews relevant cases that address whether employee experts are required to produce written reports under the rule. Part IV analyzes the extent to which the attorney-client privilege and the work-product doctrine may be used to shield discovery shared with or created by employee experts and the cases that have addressed these issues. Part V discusses the rulings of a magistrate judge in a single case in the Southern District of Ohio that addressed many of the issues discussed in this article. PART I II. BACKGROUND: THE IMPORTANCE AND PROLIFERATION OF EXPERTS IN MODERN LITIGATION Although difficult to quantify with precision, litigants rely with ever-increasing frequency on expert testimony to prosecute and defend claims. …