Republic of Ecuador v. Robert E. Hinchee
741 F.3d 1185, 2013 U.S. App. LEXIS 25102, 87 Fed. R. Serv. 3d 699 (2013)
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Rule of Law:
Under Federal Rule of Civil Procedure 26, the work-product doctrine does not protect a testifying expert's personal notes or communications with other non-attorney experts from discovery. The 2010 amendments to Rule 26 were narrow, extending work-product protection only to draft expert reports and attorney-expert communications, not to all materials created by a testifying expert.
Facts:
- Ecuadorian plaintiffs sued Texaco, later acquired by Chevron Corporation, alleging its oil exploration caused massive environmental pollution in the Amazon rainforest.
- After the case was re-filed in Ecuador, a court in Lago Agrio issued a multi-billion dollar judgment against Chevron.
- While the Ecuadorian litigation was pending, Chevron initiated a separate treaty arbitration against the Republic of Ecuador in The Hague.
- In the arbitration, Chevron relied on the expert opinions of Dr. Robert Hinchee, an environmental engineer.
- In preparation for his testimony, Dr. Hinchee created personal notes for his own use.
- Dr. Hinchee also engaged in email communications with a group of non-attorneys, primarily other experts working for Chevron.
- The Republic of Ecuador sought to obtain Dr. Hinchee's notes and non-attorney communications for use in the Hague arbitration.
Procedural Posture:
- The Republic of Ecuador applied to the U.S. District Court for the Northern District of Florida for a subpoena to obtain documents from Dr. Hinchee for use in a foreign arbitration proceeding.
- Chevron Corporation intervened in the district court action to oppose the subpoena.
- The district court granted the subpoena, but Dr. Hinchee and Chevron withheld approximately 1,200 documents, asserting work-product protection.
- The Republic of Ecuador filed a motion to compel production of the withheld documents.
- The district court conducted an in camera review of a sample of the documents.
- Following the review, the district court granted the motion to compel, finding the documents (Dr. Hinchee's notes and non-attorney communications) were not protected by the work-product doctrine.
- Dr. Robert Hinchee (Respondent-Appellant) and Chevron Corporation (Intervenor-Appellant) appealed the district court's discovery order to the U.S. Court of Appeals for the Eleventh Circuit.
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Issue:
Does the work-product doctrine, as defined by Federal Rule of Civil Procedure 26, protect a testifying expert's personal notes and communications with other non-attorney experts from discovery?
Opinions:
Majority - Hull, Circuit Judge
No. The work-product doctrine does not protect a testifying expert's personal notes and communications with non-attorneys because such materials fall outside the specific, narrow protections afforded to experts under Federal Rule of Civil Procedure 26. The court reasoned that Rule 26(b)(3)(A), which codifies the general work-product doctrine, does not mention experts, whereas Rule 26(b)(4) specifically governs discovery from experts. This structural separation indicates that the general doctrine does not apply to them. Furthermore, the 2010 amendments to Rule 26(b)(4) deliberately extended work-product protection only to two specific categories: draft reports and attorney-expert communications. By not including other materials like an expert's own notes or communications with other experts, the rule drafters made a calculated decision not to shield them from discovery. The purpose of these amendments was to protect attorney mental impressions, not to cloak the expert's own work, which must be available to the opposing party for effective cross-examination.
Analysis:
This decision clarifies the scope of discovery from testifying experts after the 2010 amendments to Federal Rule of Civil Procedure 26. It establishes that while attorney-expert communications and draft reports are now shielded as work product, an expert's own notes and communications with other non-attorneys remain discoverable. This preserves the core principle of broad discovery needed for effective cross-examination, ensuring that the factual basis and development of an expert's opinion can be thoroughly tested. The ruling prevents parties from using experts to shield factual development and collaborative analysis that does not involve direct attorney input, thereby maintaining a critical line between protected legal strategy and discoverable expert work.
