Expert Perjury Watch (National Edition)

Via the New Jersey Law Journal, via law.com, via TortsProf Blog: Last week, at its annual meeting, the ABA passed a resolution calling for experts' draft reports and communications with attorneys to be privileged from discovery, in both state and federal court.

The text of the resolution, as proposed to the ABA delegates (and presumably as approved in their 207-137 vote), reads as follows:

RESOLVED, That the American Bar Association recommends that applicable federal, state and territorial rules and statutes governing civil procedure be amended or adopted to protect from discovery draft expert reports and communications between an attorney and a testifying expert relating to an expert’s report, as follows:

(i) an expert’s draft reports should not be required to be produced to an opposing party;

(ii) communications, including notes reflecting communications, between an expert and the attorney who has retained the expert should not be discoverable except on a showing of exceptional circumstances;

(iii) nothing in the preceding paragraph should preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his or her opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches or into the validity of the expert’s opinions.

FURTHER RESOLVED, That the American Bar Association recommends that, until federal, state and territorial rule and statutory amendments are adopted, counsel should enter voluntary stipulations protecting from discovery draft expert reports and communications between attorney and expert relating to an expert’s report.

As Professor Childs notes, the New Jersey Law Journal report at law.com says little or nothing about the arguments offered in favor of this proposal by its sponsors. It's always true, of course, that nationally uniform rules would do something to simplify compliance, but national uniformity has not traditionally been a special aspiration in matters of privilege. Federalism has been more the privilege watchword, hitherto. See, e.g., Fed. R. Evid. 501.

Nor, if national uniformity is to be the new fashion, is it plain why we should not have a uniform national policy that repudiates any notion of privilege. The best argument we can come up with, on the spot, might be that the current federal regime -- in which expert-attorney communications are treated as unprivileged, in the main -- rewards sharp practice, and may encourage some amount of perjury. ("No, I prepared no drafts of my report.") Perhaps honest experts and litigators should not be forced to operate at an inherent disadvantage.

That argument would seemingly be at its strongest for drafts of reports -- especially drafts that are never transmitted to counsel. The prospect of disclosing one's every tentative expository brainstorm may well promote writer's block to an undesirable degree. The truth-seeking function is ultimately promoted if expert reports are legible, and an expert's ability to prepare drafts without attorneys peering over the expert's shoulder may be indispensable to legibility.

But the ABA resolution goes considerably further than drafts of reports, and in our view, the price of national uniformity begins to grow exorbitant, if all attorney-expert communications are to become privileged. The salutary modern trend has been to move toward full testimonial transparency. The disclosure requirements in Fed. R. Civ. P. 26(a)(2)(B), for example, currently call for disclosure of all information "considered" by the expert, whether or not the expert acknowledges formal reliance on the information. That requirement is consistent with a recognition that disputes on admissibility are not the only reason for expert discovery. It is also justifiable to inquire into issues that bear on the expert's credibility, so that the trier of fact may evaluate that question.

It is difficult to think of a credibility issue more central than the expert's communications with counsel. We have only the plain text of the ABA resolution to guide us, so far, but on our reading, it seems likely that the following lines of deposition inquiry, for example, would be barred:

• May I see a copy of your retention letter?
• Did counsel suggest that you adopt or abandon any particular method of inquiry?
• What suggestions did counsel make about the language to use, or the topics to address, or the conclusions to reach, in your report and testimony?
• What advice did counsel offer you about what data to consider or ignore?

We say they would be barred because that seems the only interpretation that would reconcile paragraphs (ii) and (iii) of the resolution. We take it, that is, that paragraph (iii) merely clarifies that an expert may not withhold data on which the expert is relying on the mere ground that the data were obtained from or through counsel. If paragraph (iii) meant more -- e.g., if "facts or data the expert is relying on in forming his or her opinion" included communications from counsel that might be seen as nudging the expert toward the desired result -- then seemingly paragraph (ii) would be vitiated.

Meanwhile, the resolution also seems likely to promote incomplete and sometimes perjurious answers to such questions as the following:

• What led you to use this method, rather than another?
• What led you to consult this data, rather than that?

Moreover, until we learn what constitutes waiver of the privilege, the resolution may risk stifling cross-examination into such statements by experts as:

• I made an independent inquiry, in which I was solely responsible for selecting the methodology and the data, and in which my conclusions were driven solely by the neutral aim of determining the truth of the matter.

One of the main rationales advanced by conservatives for adopting restrictive rules on expert testimony has been that when lawyers get the expert alone in a smoke-filled room and tell the expert what to say (perhaps while waving bankrolls in the expert's face), the result is junky expert opinion, concocted for mercenary litigation purposes, rather than the sort of neutral and dispassionate analysis that the expert might produce in nonlitigation contexts, working independently from lawyers. As debate over the ABA resolution unfolds, we'll watch with interest to see whether the defense bar remains faithful to that thinking.