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.
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)
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 dual-purpose document on the basis that it was commissioned both for litigation purposes and for use in further port construction, the court also determined that the report was afforded work product protection. The court held that the two purposes were not independent of each other, but were "profoundly interconnected", in that the determination as to the design of future construction of the port was directly dependent on the construction that had occurred to date. Furthermore, the primary purpose of the preliminary report was for use in the litigation, as it was retrospectively focused on review and assessment of the damage that had already been done, rather than forward looking at future construction.
Construction practitioners should carefully assess the manner in which they deal and communicate with experts. Thought should be given to what type of work product an expert is expected to produce and what type of protection from disclosure that work product will receive. Merely retaining an expert, even after litigation commences, does not guarantee that the documents created by that expert will be shielded from disclosure. If the document serves a dual purpose (ie, a business purpose and a litigation purpose) it will be at greater risk of disclosure, depending on the facts and circumstances surrounding the document's creation. The more intertwined it is with anticipated litigation, the more likely it is that a dual-purpose document will receive work product protection.
In addition, construction industry clients – whether owners, contractors, insurers or sureties – should understand the consequences of creating internal documents that evaluate risk in the ordinary course of business. Such documents are potentially discoverable and could thus be used against them in litigation, unless it can be proven that the document was created in anticipation of litigation and would not have otherwise been created.
For further information on this topic please contact Edward V Arnold at Seyfarth Shaw LLP by telephone (+1 202 463 2400) or email (firstname.lastname@example.org). The Seyfarth Shaw website can be accessed at www.seyfarth.com.
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