On December 14, 2017, Division III of the Court of Appeals issued Estate of Dempsey v. Spokane Washington Hospital Co., 1 Wn. App. 2d 628, 406 P.3d 1162 (2017). In Dempsey, the Court made two key rulings regarding the scope of the work product doctrine in the context of material sent to and issued from expert witnesses. Specifically, the Dempsey Court ruled: (1) attorney work product protections are waived to the extent the attorney provided facts to a testifying expert to serve as the basis for that expert’s opinions; and (2) a testifying expert’s draft opinions are protected by expert witness work product protections and are not discoverable.
- Procedural background.
In Dempsey, a medical negligence suit brought by the personal representative for the Estate of the deceased patient, the defendant physician issued a subpoena to the plaintiffs’ medical expert requesting all records provided to him, and all notes made in performing work on the case. The defendant filed a motion to compel, and the plaintiffs filed a counter motion to quash. An order for in camera review was issued. The order stated, in relevant part, the work product privilege claimed by the plaintiffs was inapplicable because the expert was a testifying expert. The plaintiffs sought and obtained discretionary review with the Court of Appeals.
- The Dempsey Court ruled that attorney work product protections are waived to the extent the attorney provided facts to a testifying expert to serve as the basis for that expert’s opinions.
Both issues before the Court in Dempsey concerned the scope of the work product privilege. Generally, the work product doctrine provides a qualified immunity against the discovery of documents prepared in anticipation of litigation. See, e.g., Harris v. Drake, 152 Wn.2d 480, 485-86, 99 P.3d 872 (2004); Heidebrink v. Moriwaki, 104 Wn.2d 392, 395,-96, 706 P.2d 212 (1985). The work product doctrine “is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.” Soter v. Cowles, Publ’g Co., 131 Wn. App. 882, 893, 130 P.3d 840 (2006), aff’d 162 Wn.2d 716 (2007) (citation and internal quotations omitted).The work product doctrine, developed from common law, was incorporated into the court rules at CR 26(b)(4). That subsection shields from discovery trial preparation materials unless the party seeking those materials makes multiple showings, including a showing of “substantial need,” and even with such showings, forbids disclosure of the “mental impressions, conclusions, opinions or legal theories of any attorney” regarding the litigation. See id.The first issue before the Dempsey Court was whether CR 26(b)(4) applies to attorney work product sent to testifying expert witnesses, or whether CR 26(b)(5), allowing discovery of testifying expert identity, the substance of their opinions, and the basis of their opinions, should apply. The Court noted that CR 26(b)(5) controls the scope of expert witness work product, not CR 26(b)(4), but that (b)(4) controls the protections afforded to attorney work product. Id. at 1166. Critically, the Court concluded that the material the defendant sought is attorney work product controlled by CR 26(b)(4), and from this, reasoned that the defendant could only seek disclosure of the plaintiffs’ attorneys’ work product under a theory of waiver since there was no attempt to meet the stringent exception of the work product rule. Id. at 1167.The Dempsey Court concluded that an attorney waives the work product privilege by sending experts written factual summaries and supporting materials that the attorney anticipates the expert will rely upon in rendering an opinion. Because the attorney knows that the expert will rely on the facts, and because the facts underlying the expert’s opinions are discoverable under CR 26(b)(5)(A)(i), theDempsey Court reasoned that “[i]t is consistent with our civil rule that an opposing attorney have a mechanism by which the facts details can be discovered.” 406 P.3d 1167.
The reviewing Court had not been provided copies of the documents for which the plaintiffs sought to protect under the work product privilege, and it remanded for determination of which portions of the documents contained factual information for the expert to rely upon (where the work product privilege was waived) and which documents contained the plaintiffs’ counsel’s mental impressions, conclusions, opinions or legal theories (where the work product privilege is not waived).
- The Dempsey Court ruled that a testifying expert’s draft opinions are protected by expert witness work product protections and are not discoverable.
The second issue analyzed by the Dempsey Court was to what extent the work product privilege shields draft opinions and reports produced by experts from discovery. 406 P.3d at 1168. The Court held that draft opinions or reports from experts are not discoverable and remained privileged as work product under the theory that the expert will not be testifying to draft opinions. See id. Because the expert does not expect to reasonably testify to their draft opinions, it cannot be inferred that they intended to waive the protections afforded to their work product.
- Dissenting opinion from Chief Judge George Fearing.
Chief Judge George Fearing wrote a blistering and lengthy dissent of Judge Robert Lawrence-Berrey’s lead opinion. Judge Fearing argued for a broader waiver of the work product protections with regard to material provided to experts, consistent with federal law interpreting what Judge Fearing saw as an analogous federal rule. Judge Fearing wrote: “This court should adopt a rule requiring a party and the party’s testifying witness to disclose all communications between the party’s counsel and the witness [.]” Id. at 1171. The central point of Judge Fearing’s dissent was that CR 26(b)(5) should control because the discovery is being sought from the expert, not the party, and that subsection does not contain a privilege for documents in the possession of the expert.Judge Fearing advocated for interpreting CR 26(b)(5) in a manner consistent with the pre-2010 amendments of Fed.R.Civ.P. 26, where the disclosure of attorney work product to a party’s expert waived any work product protection. Id. at 1174. While Judge Fearing believed that the state rule should be interpreted at least as broadly as the federal rule, the majority expressly concluded that CR 26(b)(5)(A)(i) uses “narrower language” than the former Fed.R.Civ.P. 26(a)(2)(B).
- Impact and implications of Dempsey’s rulings.
The soundness of the Court’s rulings in Dempsey can and will be the subject of debate, particularly when the grounds for its rulings are inferred waivers on the part of the attorney that sends material to testifying experts, and also on the part of the expert who drafts opinions or reports. A petition for review was filed in January 2018, but denied on April 4. See Dempsey v. Spokane Hosp. Co., LLC, 2018 WL 1616667 (April 4, 2018).The Dempsey Court’s holdings do provide some measure of clarity to points of contention that litigators have dealt with for decades. This is particularly true in legal fields where the involvement of expert witnesses is typical, such as medical negligence and product liability actions. Attorneys must be careful with regard to materials that have been prepared for purposes of litigation but are shared with expert witnesses because the opposition will likely argue that virtually everything sent to the expert should be disclosed, under the theory that the attorney anticipated that any aspect of the material was or would be considered in that expert rendering an opinion. In other words, the Dempsey Court’s reasoning of inferred waiver will almost certainly lead to substantial debate and motions practice.Another likely source of future conflict is to what extent material sent to the expert consists of the “mental impressions, conclusions, opinions, or legal theories,” which the Dempsey Court concluded were still subject to the heightened protections of CR 26(b)(4). The Dempsey Court’s distinction between information sent to the expert that falls under this protected category, and “written factual summaries and supporting materials” is not elaborated upon, nor is it explained how the trial court is to determine whether the expert relied upon attorney work product in forming opinions—particularly prior to the witness’s deposition. As the dissent opinion pointed out, “[a]sking a court to determine whether an expert has ‘considered’ certain materials…would require the court to explore the expert’s subjective mental processes and risks the creation of an unwieldly rule that would provide uncertainty as to the protected status of work product or other privileged materials.” Id. at 1175 (J. Fearing, dissenting).
 In 2010, the Federal Rules of Civil Procedure were amended to shield draft reports from experts, with three exceptions. Specifically, Fed.R.Civ.P. 26(b)(4)(B) and (C) provide:
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
- (i) relate to compensation for the expert’s study or testimony;
- (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.
- (iii) identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.
If you have questions about this client alert or related topics, please feel free to contact David M. Norman at DNorman@bbllaw.com.