Republic of Ecuador v Hinchee, 735 F.3d 1179 (10th Cir., November 13, 2013)
Nov 13, 2013
The Tenth Circuit discussed whether the work-product doctrine contained in Rule 26(b)(3)(A) extends to a party’s expert witness. It concluded that neither the plain language of Rule 26(b)(3)(A) nor traditional understandings of the work-product doctrine supported the respondent’s assertion that expert materials are protected under Rule 26(b)(3). The court then rejected the contention that the 2010 amendments to Rule 26(a)(2) and (b)(4) restored broad protection to expert materials. Rule 26(b)(3) does not provide protection for documents provided to an expert by a party. Rather, Rule 26(a) requires disclosure of “any material considered by the expert, from whatever source, that contains factual ingredients.” Id. 1187 (internal quotation marks and citation omitted). The only exceptions to disclosure are those expressly set forth in Rule 26(b)(4) – draft reports and attorney – expert communications.