From the Listserv Edited by Louise A. Lock


Louise A. Lock is a solo practitioner who received her law degree from the University of Baltimore School of Law. Her practice concen- trates in the areas of medical malpractice, drug products liability and personal injury.


Discoverability of Correspondence To and From Experts


From Charles Matz: matz@home.com


I have a question on the discoverability,


in a Maryland state court case, of corre- spondence (and other documents or tangible things) that were sent between a party’s attorney and an individual who has been designated as an expert witness for that party. The case is pending in the Cir- cuit Court for Baltimore County. The defendant designated a certain physician as an expert witness. My request for pro- duction of documents asked for “all correspondence, documents, and other tangible things” that the Defendant (or its agents) had sent to a designated expert witness. My request for production also asked for all correspondence, documents, and other tangible things that the Defen- dant (or its agents) had received from a designated expert witness. In addition to the records that were sent to the expert, I would like to see any letters that the de- fense attorney sent to the expert, or any letters that the expert sent to the defense attorney. I also want to see the expert’s bill that was sent to the defense attorney. Today, the defense attorney said in a fax that she would not be producing the documents. First, she said that my request for production did not specifically ask for the letters. But more importantly, the de- fense attorney said that I was only entitled to discover the documents on which the expert “relied” in forming his opinions. She said that, because the expert did not rely on the letters that he sent to or re- ceived from her, the correspondence is “protected by privilege,” is not discover- able, and will not be produced. Her fax did not address the discoverability of the expert’s bill. Who is right? Are there any suggestions as to what I should do? Any guidance would be greatly appreciated.


From Bob Samet: ashcraft@Radix.Net


She’s wrong. You’re entitled to know everything she said to him and sent to him


Summer 2002


about the case and everything he said to her about it. What if she said to him: “You come through for us on this one, and we’ve got a lot of good business we can send your way?” What if he said to her “I’ll give you what you want, but I don’t know if I can defend it on cross examina- tion” or “I can give you what you’re looking for, but I think your case is weak?” She’s saying you can’t look for that kind of stuff?


From Gerald Holtz: GIHoltz@aol.com


I agree with Bob, for the most part. I


think you are entitled to obtain whatever has passed between the lawyer and the expert relative to the formulation of the expert’s opinions. It is not up to defense counsel to pick and choose. However, I am not sure that you are entitled to the discussions between counsel and the ex- pert concerning the strengths and weaknesses of the defense case as viewed by the expert. Remember, the door swings both ways. Would you want to reveal some of the discussions you’ve had with your experts? I thin you need to be care- ful, especially as it relates to what you write your experts.


From David Wildberger: DavidWild1@aol.com


Bob is 100% correct. You are entitled


to discovery of anything that passes be- tween counsel and an expert designated to testify at trial. Do a good faith letter and follow up with a Motion to Compel.


From Scott Sonntag: wss@foransonntag.com


Where’s the law guys? I see lots of opin- ions but no cites. My experience is that when the matter is pressed some judges will protect some types of documents that pass between lawyer and expert on a “work product” basis. The reality is that to avoid this problem most defense lawyers either don’t give the experts long correspondence with records or they have the experts con-


Trial Reporter


veniently “not keep and don’t recall” cor- respondence. The latter is the rule. I would take the position that you must be given the opportunity to “test” the expert’s reliance on anything he\she has reviewed. Certain things have influence on an opin- ion that the expert doesn’t even realize until confronted. But don’t expect to find the defense lawyer’s road map to the de- fense of the case because if the expert ever had it, it’s probably long gone.


From Anthony James Pagano: ajpagano@brsglaw.com


At the risk of stating the obvious, the


issue you need to research is the breadth of Maryland’s work product doctrine. Keep in mind, this is a “doctrine,” not a “privilege.” The purpose is different — the A/C privilege is intended to encour- age free communication and advice between attorney and client, the W/P doctrine is relatively new and is based on the idea that it isn’t fair to let your oppo- nent benefit from your work. In federal court, Rule 26(b)(3) would require full disclosure because it encompasses all ma- terials “considered” by the testifying expert, which is broader than the tradi- tional approach of all materials “relied upon” by the expert in formulating his or her opinion. Further, there may be a dis- tinction between the fact work product transmitted to the expert (i.e., medical records, accident reports, etc.) and the attorney’s opinion work product (i.e., the cover letter to the expert containing a statement like “I am concerned that . . . “, “In my opinion . . .,” etc.). Moreover, there is support for an argument that the simple fact that the attorney selected cer- tain docs from a larger field of docs to transmit to the expert is opinion work product in and of itself — the selection of these documents from others would reveal what the attorney thinks is relevant/ important to the case, i.e., the attorney’s mental impressions. Counter this with the argument that the underlying records are not “work product” at all, as they were not prepared by a party or its representa-


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