In Republic of Ecuador v. Hinchee, Case No. 12-16216 (decided December 18, 2013), the Eleventh Circuit addressed the extent to which a party’s expert witness must produce documents in discovery. Appellate court decisions addressing discovery issues are rare. The decision suggests how attorneys might better deal with their experts.

The Hinchee case is an outgrowth of a heavily-litigated dispute between plaintiffs in the Republic of Ecuador and Chevron. Among other things, those parties are involved in a dispute pending in the Permanent Court of Arbitration in The Hague. In connection with that arbitration, the Republic of Ecuador subpoenaed documents from Dr. Hinchee who was one of Chevron’s expert witnesses.

Dr. Hinchee resisted producing two categories of documents:  (1) his personal notes, and (2) his communications with individuals who were not Chevron attorneys or members of the attorneys’ staff. That second category of documents included communications with Chevron employees who were not attorneys and other Chevron experts.

The District Court ordered Dr. Hinchee to produce these documents, and Dr. Hinchee and Chevron appealed. The Eleventh Circuit affirmed the order to produce the documents.

The focus of the decision was the language of Federal Rule of Civil Procedure 26. Under that Rule, draft expert reports and disclosures are protected against discovery. Rule 26 also protects attorney-expert communications.

However, outside of those two categories, documents possessed by an expert that are relevant to the case are open to discovery. Chevron argued that the documents at issue reflected attorney work product. However, the protections for attorney work product protected only those parts of the documents containing the mental impressions of the attorneys. 

The outcome in this case offers two practice tips for dealing with experts. First, parties might gain greater protection from discovery by making sure that communications with the expert go through counsel. Second, experts should always remember that their notes are not immune from discovery and that they should create notes with the expectation that they will be produced to the opposing party.