Law School Case Brief
Republic of Ecuador v. Hinchee - 741 F.3d 1185 (11th Cir. 2013)
Nothing suggests that the drafters of the 2010 amendment to Fed. R. Civ. P. 26(a)(2)(B) had the intent to confer work-product status on the notes of a testifying expert or on a testifying expert's communications with other experts. Rather, the 2010 amendment to Rule 26(a)(2)(B) was intended to protect the opinion work-product of attorneys in the context of expert discovery. As the 2010 Advisory Committee put it, the refocus of disclosure on "facts or data" is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel. At the same time, the term "facts or data" should be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. And Rule 26(a)(2)(B)'s disclosure obligation extends to any facts or data considered by the expert in forming the opinions to be expressed, not only those relied upon by the expert. In other words, the term "facts or data" includes all materials considered by a testifying expert, except the core opinion work-product of attorneys.
In 1993, a group of Ecuadorian plaintiffs filed a federal class action complaint against a subsidiary of Texaco, Inc. in the Southern District of New York. The Ecuadorian plaintiffs alleged that Texaco’s oil exploration in the Amazonian rainforest polluted private and public lands in Ecuador; and that Texaco was responsible for the plaintiffs’ oil-related health problems and the environmental contamination of the plaintiffs’ property. The Southern District of New York dismissed the case on the basis of forum non conveniens, and the Second Circuit affirmed. After the aforementioned ruling, some of the plaintiffs filed similar claims in Lago Agrio, Ecuador in 2003. By then, Chevron had merged with Texaco, thereby assuming liability for Texaco’s operations. While the Lago Agrio litigation was pending in Ecuador, Chevron sought arbitration against the Republic of Ecuador in front of the Permanent Court of Arbitration in The Hague, Netherlands. To defend itself, Chevron relied on the expert reports of Dr. Hinchee - an environmental engineer and an expert in the assessment and remediation of petroleum contaminated sites residing in Florida – in both the Lago Agrio litigation and in the Treaty arbitration. In this light, the Republic of Ecuador sought discovery from Dr. Hinchee in the District Court for the Northern District of Florida where Dr. Hinchee was residing. The Republic requested the discovery to aid “in defending the validity of the Lago Agrio judgment” in the Treaty arbitration. The District Court granted the Republic’s request for a subpoena, and Dr. Hinchee and Chevron produced approximately 94,000 pages of documents. However, Dr. Hinchee and Chevron asserted work-product protection over 1,200 documents. The Republic then moved to compel production of the remaining 1,200 documents, challenging Chevron’s and Dr. Hinchee’s assertions of work-product protection and requesting that the district court perform an in-camera reviews. The district court ordered Chevron to submit 40 of the withheld documents for in camera review. After concluding such review, the district court ruled that 39 of the 40 documents were not privileged – they included Dr. Hinchee’s notes and communications between Dr. Hinchee and one or more individuals who were neither attorneys nor members of an attorney’s staff. Subsequently, the District Court ordered Chevron and Dr. Hinchee to produce the 39 non-privileged documents, explaining that the work-product doctrine did not protect a testifying expert’s own notes or communications with another testifying expert. Chevron and Dr. Hinchee timely appealed the district court’s order.
Did the “work-product doctrine” protect a testifying expert’s own notes or communications with another testifying expert?
The United States Court of Appeals affirmed the district court's order compelling the production of the documents. The Court held that the general work-product doctrine of Fed. R. Civ. P. 26(b)(3)(A) did not cover a testifying expert. According to the Court, unlike an attorney, consultant, surety, indemnitor, insurer, or agent, a testifying expert's role was to provide independent, impartial, qualified opinion testimony helpful to the trier of fact. Given that testifying experts offer evidence in court, the Court averred that the opposing side must have the opportunity to challenge the opinions of a testifying expert, including how and why the expert formed a particular opinion. The Court held that cloaking all materials prepared by or for a testifying expert under the work-product doctrine would inhibit the thorough and sharp cross examination that was vital to an adversary system. Furthermore, the Court noted that because the 2010 amendment to Rule 26(a)(2)(B) was intended to protect the opinion work product of attorneys in the context of expert discovery, and not to confer work-product status on the notes of a testifying expert or on a testifying expert's communications with other experts, there was no basis to shield from discovery the theories and mental impressions of testifying experts.
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