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A Federal District Court in Charlottesville has ruled that memos sent by a law firm to its experts are discoverable. The case, Lamonds v. General Motors Corp, involved a products liability claim against GM after a motor vehicle accident. The plaintiff had a single vehicle accident and was ejected from the rear window of her 1988 Chevrolet Spectrum. She suffered severe brain injuries as a result of the accident and claimed that a defective seat design cause her to be ejected. As part of the case, a legal assistant for plaintiff’s counsel prepared two memos that were provided to plaintiff’s experts. The memos contained, in part, interviews with witnesses and included both factual information and the mental impressions of the legal assistant.
The defense moved to discover the memos and the plaintiff invoked the attorney work product doctrine that has generally been one of the most protected privileges in the 4th Circuit. US Magistrate Judge B. Waugh Crigler in Charlottesville denied the defense motion, and the defense appealed to the senior judge. Senior US District Court Judge James H. Michael, Jr. reviewed the documents and concluded that they should be produced. Judge Michael wrote that, generally, attorney work product is fiercely protected. “Where, however, an attorney provides work product material opinion, the current rules and Advisory Committee’s notes strongly suggest that information is discoverable.” The Advisory note he referred to explicitly states that given the “obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used … are privileged and otherwise protected from disclosure.”
Judge Michael’s holding produces a bright line test when it comes to material in an expert’s possession. If the expert gets the document, it is discoverable, regardless of the content. If you do not want the other side to obtain certain information, do not send it to the expert. Obviously, lawyers working with experts in Federal Court would be wise to communicate verbally with their experts rather than reducing their thoughts to writing. The decision, however, does not just affect documents coming out of law firms. While it was not explicitly stated in the opinion, materials sent prior to defense counsel becoming involved are almost certainly discoverable as well. One example of information discoverable in this fashion is a letter to a peer review doctor in a personal injury case. If the claim representative puts his or her mental impressions about the case in the letter, the other side will eventually be able to read and use those thoughts.
If you do communicate to experts in writing, be sure to provide only objective information and be sure to include all of the relevant facts, not just those important to your position. While in this case it was the plaintiff who was forced to produce documents, the defense will be under just as much scrutiny, if not more.
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