Lamonds v. General Motors Corp.
1998 U.S. Dist. LEXIS 12828, 180 F.R.D. 302, 41 Fed. R. Serv. 3d 1023 (1998)
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Rule of Law:
Attorney work product protection is waived for any materials, including opinion work product, that are provided to and considered by a testifying expert witness in the formation of their opinion.
Facts:
- A plaintiff was severely injured in an accident involving an automobile manufactured by General Motors Corporation (GMC).
- The plaintiff alleged that a design defect in the automobile caused her injuries.
- A member of the plaintiff's legal team created two documents (memoranda) concerning the case.
- The plaintiff retained two expert witnesses to provide testimony on the alleged defect.
- The plaintiff's legal team provided the two memoranda to the retained experts.
- Both experts received and read the memoranda before forming their opinions for the litigation.
Procedural Posture:
- Plaintiff initiated a products liability action against General Motors Corporation (GMC) in a U.S. District Court.
- During the discovery phase of litigation, GMC filed a motion to compel the production of two documents.
- Plaintiff opposed the motion, asserting that the documents were protected from disclosure by the attorney work product doctrine.
- The matter was referred to a United States Magistrate Judge, who reviewed the documents and issued an order denying GMC's motion to compel.
- GMC, as the defendant, filed a timely objection to the Magistrate Judge's order, bringing the matter before the U.S. District Court for review.
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Issue:
Does the work product doctrine protect from discovery documents prepared by an attorney that are provided to and considered by a testifying expert witness in forming their opinion?
Opinions:
Majority - Michael, Senior District Judge
No. The work product doctrine does not protect from discovery documents that an attorney provides to a testifying expert who considers them in forming an opinion. The 1993 amendments to Federal Rule of Civil Procedure 26(a)(2) and its accompanying Advisory Committee Notes created a bright-line rule requiring disclosure of all materials 'considered' by a testifying expert. This rule supersedes the qualified protection for fact work product and the near-absolute protection for opinion work product under Rule 26(b)(3) in this specific context. The court reasoned that effective cross-examination, which is essential to testing the reliability and independence of expert testimony, requires the opposing party to have access to all information that shaped the expert's conclusions. An expert is deemed to have 'considered' material if they received and read it; they do not need to have explicitly 'relied' upon it. By choosing to provide work product to an expert, an attorney effectively waives the privilege for those materials.
Analysis:
This decision establishes a bright-line rule that prioritizes discovery and transparency in expert testimony over the traditional protections of the work product doctrine. It clarifies that the 1993 amendments to the Federal Rules of Civil Procedure effectively created a waiver of privilege for any information shared with a testifying expert. This forces attorneys to make a strategic choice: either maintain the absolute secrecy of their work product by not sharing it with experts, or provide it to experts to aid their analysis at the cost of having to disclose it to the opposing party. The ruling significantly impacts litigation strategy by making the basis of expert opinions more transparent and subject to scrutiny during cross-examination.
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