This guest post was written by David B. Alden. Mr. Alden is a partner resident in the Cleveland office of Jones Day. This post is entirely his work:

Suppose you mistakenly produce privileged or protected documents to a litigation opponent – an unfortunately common occurrence in large scale litigation. Proposed Fed. R. Evid. 502(b), the federal common law rule applied nearly all circuits, and many agreed case management orders allow you to retrieve the privileged or protected document so long as the disclosure was inadvertent, you took reasonable steps to prevent disclosure, and you take prompt and reasonable steps to rectify the error after it is discovered. See Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409, 1415 (Fed. Cir. 1997) (no waiver from inadvertent production); but see In re Sealed Cases, 877 F.2d 976, 980 (D.C. Cir. 1989) (inadvertent production results in waiver). No problem.

But suppose that, rather than producing them to your opponent, you inadvertently provide privileged or protected documents to your testifying expert. Fed. R. Civ. P. 26(a)(2)(B) requires that an expert’s report include “a complete statement of … the data or other information considered by the witness in forming the opinions.” And, following the 1993 amendments, “the majority view [is] that Rule 26 now requires disclosure of all information provided to testifying experts,” including privileged or protected documents. Regional Airport Auth. v. LFG, LLC, 460 F.3d 697, 715 (6th Cir. 2006); accord In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001); see also Advisory Comm. Note to 1993 Amendments to Fed. R. Civ. P. 26(a)(2). When both rules arguably apply, which one wins – the rule excusing inadvertent disclosures of privileged and protected materials or, alternatively, the rule requiring disclosure of all information provided to testifying experts?

Two recent decisions addressed this situation – In re Vioxx Products Liability Litigation, MDL No. 1657, 2007 WL 1558700 (E.D. La. May 30, 2007), and In re Christus Spohn Hospital Kleberg, No. 04-0914, 2007 Tex. LEXIS 362 (Apr. 27, 2007). Both courts found that the experts to whom the documents had been provided could be examined regarding the documents. But, although In re Vioxx limited use of the documents to that context, neither court analyzed what other use, if any, could be made of the documents. Nonetheless, there are persuasive reasons for concluding that, as In re Vioxx directed, only a “limited” or situation-specific waiver should result.

In re Vioxx

In In re Vioxx, the Plaintiffs’ Steering Committee’s expert consulting firm provided two experts with a copy of “a detailed litigation strategy outline … discuss[ing] the various scientific issues in the case.” 2007 WL 1558700, at *1. Plaintiffs’ counsel eventually discovered the disclosure and sought to compel return of the outline. Both experts who received the outline submitted affidavits stating that they had “no specific recollection of reviewing” it. Id. at *2.

Recognizing that the advisory committee comments to the 1993 amendments to Fed. R. Civ. P. 26(a)(2)(B) strongly support waiver as to materials provided to testifying experts, the Steering Committee asked the court to carve out an exception for inadvertent disclosures of “core work product.” Id. at *3. The Steering Committee relied on Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 644 (S.D. Ind. 2000), another decision involving inadvertent disclosure to a testifying expert, and Alldread v. City of Grenada, 988 F.2d 1425 (5th Cir. 1993), which did not involve inadvertent disclosure to an expert.

Rejecting these arguments, In re Vioxx concluded that “whether or not the experts ultimately relied on th[e] document is irrelevant” and that “inquiries into whether or not an expert considered any given document … are necessarily fraught with difficulties.” Id. at *4 (citation omitted). In re Vioxx found that the outline could be used in examining the two experts to whom it had been disclosed. Id. But the court stopped short of finding a waiver and, without explanation or analysis, prohibited use of the outline “to cross-examine witnesses to whom the document was not disclosed and who are not otherwise familiar with its contents.” Id.

In re Christus Spohn

In In re Christus Spohn, the defendant hospital’s paralegal provided the hospital’s testifying expert with a copy of an internal investigator’s report relating to the plaintiff’s decedent’s claim. She had only recently moved to Texas from California and believed that, as she understood the rule to be in California, materials provided to testifying experts remained confidential. Defense counsel first learned that the report had been provided to the expert at the expert’s deposition and then promptly provided the notice of inadvertent production as required under the Texas inadvertent production rule, Tex. R. Civ. P. 193.3(d). The expert testified that she did not read the report and, instead, merely “glanced” at it and, after determining what it was, “tossed [it] back in the box.” The state trial court found that production to the expert waived the work product claim and the intermediate appellate court denied mandamus relief.

The Texas Supreme Court also denied the defendant hospital’s mandamus petition. Notwithstanding the expert’s testimony that she did not rely on the report and the Texas rule expressly providing for retaining privilege and work product claims as to inadvertently produced documents, the court found that the 1999 amendment to the Texas rules requiring disclosure of documents “that have been provided to, [or] reviewed by” a testifying expert prevailed. Id. at *9 (quoting Tex. R. Civ. P. 192.3(e)(6)). An “expert’s vast potential for influence” was the primary basis for preferring disclosure over protecting privilege or work product claims. Id. at *16. As the court explained:

[T]he expert witness paints a powerful image on the litigation canvas. And it is
typically the hiring attorney who selects the materials that will provide color
and hue. Just as a purveyor of fine art must examine the medium used in order to
distinguish masterpiece from fake, a jury must understand the pallet from which
the expert paints to accurately assess the testimony’s worth. Given the
importance that expert testimony can assume, the jury should be aware of
documents and tangible things provided to the expert that might have influenced
the expert’s opinion.

Id.

The court expressly considered and rejected the argument that, because the expert merely “glanced” at the documents and did not rely on them in forming her opinions, the work product claims survived because the “plain language of [the expert disclosure rule] makes it immaterial whether she reviewed the documents; they were discoverable because they were provided to her.” Id. at 30. The court, however, declined to decide whether the documents could be admitted for purposes outside the context of the deposition of the expert to whom they had been disclosed. Id. at 32.

Correct Results

Both decisions ended up in essentially the right place. Even apart from the relatively clear “legislative history” showing that all materials disclosed to testifying experts must be produced, a number of very pragmatic reasons counsel against barring disclosure of privileged or protected documents inadvertently provided to testifying experts.

First, although both courts proceeded as if the “no waiver from inadvertent production” rule would have applied but for the fact that the production was to an expert, that is far from clear. The “no waiver from inadvertent production” rule applies broadly and, in general, seeks to excuse the inevitable mistakes that occur in larger document productions notwithstanding reasonable efforts to avoid them. But testifying experts typically review a comparatively small subset of the documents produced or at issue in any given action. That subset should be carefully monitored by the attorneys retaining the testifying experts because, among other things, testifying experts’ time is too expensive to be wasted on unfocused document reviews. A court could easily conclude that, in the context of providing materials to testifying experts, it is always unreasonable to fail to screen out privileged and protected documents.

Indeed, the facts in In re Christus Spohn suggest there was less than the highest level of pre-production review of the materials provided to the expert. The decisions about what the expert should be provided apparently were made by a paralegal who was new to both the firm and that jurisdiction. There is no indication that the new paralegal’s determinations were reviewed by anyone else. Thus, the review process in In re Christus Spohn at least arguably reflect an absence of reasonable precautions.

Second, a contrary rule would create substantial opportunities for mischief. Unscrupulous attorneys could provide experts with privileged or protected materials, hoping that they would favorably guide or influence the experts’ opinions, and then pull them back by claiming “mistake.” Similarly, and as In re Vioxx recognized, it is unwise to have the continued viability of privilege or work product claims rest on an expert’s post-hoc testimony about whether he or she considered or relied on the materials. Indeed, it may be impossible to assess how discrete bits of information affected an opinion or what an expert’s opinion would have been in a world in which he or she did not see some materials that, in fact, were reviewed.

A “Limited Waiver” Rule?

Perhaps the most interesting aspect of both cases, however, is an issue that neither court expressly analyzed – the extent to which, following the inadvertent disclosure, the documents are “off limits” in contexts other than examining the expert to whom they were disclosed. In re Vioxx, without explanation or analysis, simply directed that the document at issue there could “not be used to cross-examine witnesses to whom the document was not disclosed and who are not otherwise familiar with its contents.” 2007 WL 1558700, at *4. And In re Christus Spohn “decline[d] to opine on the potential admissibility of the … documents at trial” because the issue was “premature.” 2007 Tex. LEXIS 362, at *32.

On the one hand, if there was a “waiver,” the documents are no longer privileged or protected. Accordingly, they should be fodder for cross-examining any witness, and, if the hearsay and relevance rules are satisfied (which is not clear), they should be admissible. On the other hand, if, as In re Vioxx concluded, the documents may be used only in cross-examining the expert to whom they were disclosed, then why was there a “limited waiver” such that use in other contexts is impermissible?

Courts addressing intentional, voluntary disclosures of privileged or protected documents have generally found that such disclosures, even in connection with cooperating with government regulators, waive claims of privilege or protection for all purposes, including use in other, unrelated contexts. E.g., In re Columbia/HCA Healthcare Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002); United States v. MIT, 129 F.3d 681 (1st Cir. 1997); Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981). Although the August 2006 draft of proposed Fed. R. Evid. 502 would have permitted “limited waivers” in some circumstances, that provision was deleted from the rule as approved by the advisory committee and sent to Congress. If the rule governing intentional, voluntary waivers applies on these facts, the In re Vioxx court erred in prohibiting use of the formerly protected documents beyond the experts to whom they were inadvertently disclosed.

But, in similar contexts, courts have used “fairness” to assess the extent of privilege or work product waivers. For example, when a party discloses otherwise privileged or protected documents, courts typically assess whether and the extent to which to imply a “subject matter” waiver as to other, still-undisclosed privileged or protected communications based on the extent to which the litigation opponent has suffered prejudice that, in “fairness,” requires further disclosure. E.g., In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370 (Fed. Cir. 2001); In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000). Similarly, when a privilege-holder waives claims of privilege or protection by placing privileged or protected communications “at issue,” the scope of the resulting waiver is typically assessed based on what “fairness” to the litigation adversary requires. United States v. Amlani, 169 F.3d 1189 (9th Cir. 1999); United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991).

Applying an analysis based on “fairness” to inadvertent disclosures of privileged or protected materials to testifying experts suggests that use of those materials should be limited to the experts to whom disclosure was made – a “limited waiver.” The basis for requiring disclosure – the need to examine the expert regarding documents the expert considered in reaching his or her conclusions – does not require permitting use of the documents in other contexts. And, apart from using the documents in connection with examining the expert to whom they were produced, it is difficult to see why the general rules guarding against waiver from inadvertent disclosures should not apply. Thus, as In re Vioxx found, only a “limited waiver” should result from inadvertent production of privileged or protected materials to testifying experts.