Privileged Documents Provided to an Expert Witness: Has the Privilege been Waived?
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Expert discovery has just been served by opposing counsel and your retained expert provides you with a copy of his file, including all documents he has reviewed in the matter, as requested. Your heart skips a beat as you discover several privileged documents have been provided to your expert throughout the course of the litigation. Do you have to turn over the documents to opposing counsel?
The answer in short is, maybe. Florida courts have long attempted to preserve privileges, if possible, especially when dealing with the Attorney-Client privilege and the Work-Product doctrine/privilege. However, it is likely that over the years you have heard someone, be it a mentor, a paralegal or opposing counsel make the claim that anything provided to an expert is discoverable and all privileges are waived. While it is good practice to ensure that no documents are provided to your expert that you do not want disclosed in the matter, Florida courts have found that a party does not automatically waive a privilege simply by furnishing protected or privileged material to the party’s own expert.
In the Fall of 2003, Charles W. Ehrhardt and Matthew D. Shultz took an in-depth look at the status of Florida law as it applies to Work-Product provided to an expert witness in Pulling Skeletons From the Closet: A Look into the Work-Product Doctrine as Applied to Expert Witnesses, 31 Fla. St. U. L. Rev. 67. This entry will focus on a more recent decision by the First District Court of Appeals in, Mullins v. Tompkins, 15 So. 3d 789 (Fla. 1st DCA 2009).
As a brief background, discovery in general is governed by Florida Rule of Civil Procedure. Rule 1.280(b)(4) addresses discovery of information known to experts expected to be called as an expert at trial. The rule in pertinent part states, “Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule (**essentially saying not otherwise protected or privileged**) and acquired or developed in anticipation of litigation or for trial, may be obtained as follows: . . .” Accordingly, the rule notes that not all facts known to the expert are discoverable. The key question, as addressed in Mullins, is whether the fact/opinion is used by the expert to form an opinion that they will be testifying to at trial. Florida’s Rules of Evidence as codified in statute, in pertinent part, are the basis for the qualifying question above. Florida Statutes § 90.704 states, “The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial.” Florida Statutes § 90.705(1) states, “Unless otherwise required by the court, an expert may testify in terms of opinion or inferences and give reasons without prior disclosure of the underlying facts or data. On cross-examination the expert shall be required to specify the facts or data.”
It is this interplay of facts and opinions underling an expert’s opinion that is the focus of Mullins. In Mullins, a medical malpractice action, the trial court entered an order requiring defendant dentist to disclose to Plaintiff documents that were protected by the attorney-client privilege and the attorney work product doctrine because they had been provided to defendant’s identified expert. The trial court reasoned that any privileges/protections had been waived when the documents were sent to the defendant’s retained expert, even if sent by mistake. Specifically, the documents in question were described as letters from defense counsel to the defendant and her malpractice insurer, whom the attorney also represented in the action, which included counsel’s evaluations of the matter. Additionally, emails and other correspondence from the defendant to her attorney in which she commented on the plaintiff’s care and treatment were mistakenly sent to the expert. The trial court determined that by negligently including the materials described above when transmitting documents to the expert, the defendant had waived all applicable privileges as a result of Florida Statutes § 90.705. Defendant filed petition for writ of certiorari and upon review the First DCA quashed the order requiring production of the privileged documents and information.
The appeals court noted that, “The principal of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party’s own expert.” Id. at 801. The expert had testified that he did not review the documents in question and did not rely on them in any way in forming his opinions. Finding the expert’s testimony to be credible, the appeals court noted that even when an expert is to testify, opposing parties may be unable to discover privileged material provided to the expert that is not being offered as evidence. As the expert in Mullins did not rely on the documents in question or any information contained therein in forming his opinions, the privileges and protections were not waived and the information provided was not discoverable.
In summary, courts have the discretion to require the underlying facts/opinions used in forming an expert’s opinion to be disclosed prior to trial. If those facts or underling opinions are represented in documentation that would otherwise be privileged, the privilege is waived and the documents are discoverable. However, even if the expert had reviewed the documentation, if he or she did not rely on or use the information contained in the privileged documentation in forming their opinions that will be given at trial, the privilege has not been waived and the documents are more than likely undiscoverable.
(****) Denotes authors opinion not specifically contained in the quoted language.