Attorneys and litigants would love a peek behind the curtain to develop a better understanding of their adversary’s case. Of course discovery provides the parties with various tools to identify and narrow the issues prior to trial. But discovery can only reach so far. In light of various privileges and exceptions, litigants often grapple over those materials that are discoverable and those that remain protected. In a recent New Jersey Superior Court decision, the court evaluated the extent of the attorney work-product doctrine as it pertains to expert testimony.
In a medical malpractice matter captioned Dalton v. Crawley, et al. Superior Court of New Jersey No. 4033-12T3, the plaintiff appealed two discovery orders that compelled her to produce transcripts of her adversary’s expert conducted in prior cases. The plaintiff alleged that these transcripts constituted work-product because she intended to use them only during her cross-examination of the expert. The plaintiff argued that requiring the production of these transcripts would diminish the effectiveness of cross-examination, citing in support FRCP 26(a), which exempts from disclosure the identity of documents used solely for impeachment.
In opposition, the defendants alleged that permitting plaintiff to impeach expert witnesses with statements from prior depositions could result in misleading testimony, especially since the statements could be taken out of context and were likely culled from cases that involved unique issues.
The Superior Court ordered that the plaintiff identify the transcripts in her possession but held that plaintiff need not disclose which of these transcripts she would use at trial. On the one hand the court sought to eliminate surprise at trial but it also wanted to protect counsel’s mental impressions and strategy. Critical to the court’s holding was that the transcripts were not protected as work-product because they were not prepared in anticipation of litigation or for trial.
This holding provides clarity on the intersection between the work-product doctrine and expert discovery. In jurisdictions that permit it, discovery directed to experts can be invaluable. Given that prior transcripts and other information are readily available online, expert “background checks” may reveal information helpful during a cross-examination.
Moreover, when retaining an expert, consider that she will be under scrutiny so do your homework. Take the time to review your experts’ testimonial history prior to trial to uncover any potential problems that could be vulnerable to a cross-examination attack. Researching all witnesses is permissible and can pay dividends.