In yet another chapter in a case that originated in a settlement made almost twenty years ago, the Ninth Circuit has narrowed the protection available to testifying experts’ materials under Rule 26(b)(3). The case involves claims that a group of Ecuadorians brought to recover for public health issues and other damage caused by environmental pollution and contamination caused by drilling by Texaco (Chevron’s predecessor).

In The Republic of Ecuador v. Mackay, Chevron argued that Rule 26(b)(3) “always provides presumptive protection for all testifying expert materials because they are necessarily prepared ‘by or for’ a party or its representative.” The three-judge panel disagreed, affirming the district court’s opinion and, in a decision released on January 31, called the oil company’s arguments “redundant” and “implausible.” Chevron’s argument centered on the protection of materials prepared by two of Chevron’s experts.

In 2011, Ecuador filed §1782 applications seeking discovery from experts Mackay and Kelsh on the topics of soil and groundwater conditions and epidemiology, respectively. Ecuador alleged that the experts had used selective sampling to produce results favorable to the Defendants. The applications were granted and Chevron produced many documents but withheld others that it claimed were protected by the Rule 26(b)(3) privilege.

As to Mackay, Chevron was required to produce all documents except for the expert’s draft reports and certain “communications directly between” the expert and Chevron’s counsel. Kelsh’s protection was a bit broader, excluding draft reports and worksheets, as well as communications between Kelsh and his assistants, and communications between Kelsh or his assistants and Chevron’s counsel.

The appellate court examined the structure of the rule in terms of inclusion and exclusion of certain documents. It distinguished between Rule 26(b)(3) which protects “Materials” and Rule 26(b)(4) which delineates protection for “Experts.” The court’s interpretation is that experts are to be treated differently in terms of materials excluded from discovery. The court went on to examine the history of the rule and how it has changed since the seminal ruling by the U.S. Supreme Court regarding work-product in Hickman v. Taylor in 1947.

Ultimately, the court found that the evolution of the rule and the notes of the Advisory Committee of the Federal Rules of Civil Procedure are designed to protect work-product, including draft reports and attorney-expert communications, acknowledging “the reality that attorneys often feel that it is extremely useful – if not necessary – to confer and strategize with their experts.” But, at the same time, opposing parties have a right to “understand and respond to a testifying expert’s analysis” and the failure to provide trial preparation materials that contain that information “would hamper an adverse party’s ability to prepare for cross-examination and rebuttal.”

Whether the decision clarifies the rule or further muddies the waters of distinction between what is and is not discoverable from expert witnesses remains to seen. In the meantime, expert witnesses called to testify in the Ninth Circuit should be aware of the current interpretation of the rule going forward.

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