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Jakelsky v. Siemens Rolm Communications

January 11, 1999


The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge




KUGLER, United States Magistrate Judge

Presently before the Court is the application brought by David J. Bishop, Esquire, attorney for Defendant Jane S. Friehling, D. O., seeking the production of certain material provided by Plaintiff's counsel to Plaintiff's expert witness in preparation for the expert's report and deposition testimony. The Court having considered the parties submissions and having conducted a telephone conference on November 30, 1998, and for the reasons discussed below, the Court holds that the December 4, 1997 letter from Peter D. Hoffman, Esquire, to Dr. Michael L. Schilsky is discoverable and must be produced to the Defendants in this action.


Briefly stated, this case arose from a motor vehicle accident that occurred on July 13, 1995 in which the car Plaintiff Thomas G. Jakelsky was driving struck and killed a pedestrian. Plaintiff was convicted of careless driving on November 15, 1995. Plaintiff alleges, among other things, that the proximate cause of the accident was Defendant Dr. Friehling's negligence in failing to diagnose and treat Plaintiff for a rare disease known as Wilson's Disease.

The issue before the Court is whether a December 4, 1997 letter from Plaintiff's counsel to Dr. Schilsky, Plaintiff's expert witness, is protected by the attorney work product doctrine and, if so, whether the letter is nevertheless discoverable under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. *fn1

The work product doctrine protects from disclosure documents "prepared in anticipation of litigation." Maertin v. Armstrong World Indus., Inc., 172 F.R.D., 143, 148 (D.N.J. 1997) (citing Conoco, Inc. v. United States Dep't of Justice, 687 F.2d 724, 730 (3d Cir. 1982)). The doctrine provides an independent basis upon which the litigants may rely for protection of an attorney's trial preparation thoughts and materials. Hickman v. Taylor, 329 U.S. 495, 497 (1947); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 592 (3d Cir. 1984). The work product doctrine protects from disclosure those documents and other tangible things that a party or a party's representative prepares in anticipation of litigation in recognition of the need for a lawyer to "work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman, 329 U.S. 495 at 510-11. The doctrine covers the "written material obtained or prepared by an adversary's counsel with an eye toward litigation," and it includes: "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs. . . ." Bogosian, 738 F.2d at 592.

The work product doctrine is narrower than the attorney-client privilege in that it can be pierced in some circumstances if the party seeking the information can demonstrate a "substantial need" for the information. See Fed. R. Civ. P. 26(b)(3). *fn2

The December 4 letter to Plaintiff's expert appears to be attorney work product. The document was prepared by Plaintiff's counsel and appears to be an outline the Plaintiff's expert is to use is preparing his report in this action. Therefore, the document was prepared because of or in anticipation of this litigation. Additionally, the letter reveals Plaintiff's attorney's thoughts and impressions of this case. For example, paragraph number five of the letter provides the expert with the elements that Plaintiff will have to prove at trial to prove that Dr. Friehling was negligent in diagnosing and treating Plaintiff. Additionally, the letter suggests that Plaintiff seeks to prove at trial that Dr. Friehling is a specialist and thus, subject to a heightened standard of care. *fn3

Prior to 1993, that might have been the end of this Court's analysis because, prior to 1993, the law in this Circuit protected from disclosure attorney work product materials that had been considered by an expert witness in preparing his or her report or preparing for testimony. See Bogosian, 738 F.2d at 594. However, the 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure require disclosure of all materials considered by a party's expert witness in reaching his or her opinion notwithstanding the fact that the material might otherwise have been protected by the work product doctrine. See Karn v. Rand, 168 F.R.D. 633, 637 (N.D. Ind. 1996); B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, Inc., 171 F.R.D. 57, 66-67 (S.D.N.Y. 1997); Barna v. United States, Civ. No. 95-6552, 1997 WL 417847, *2 (N.D. Ill. 1997).

The Court begins its analysis with the express words of the applicable rule. Rule 26 provides, in pertinent part: Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Fed. R. Civ. P. 26(a)(2)(B) (emphasis supplied).

According to the express directive in the rule, parties must disclose all "data or other information considered by the [expert] witness in forming the opinions [in his or her report]." Id. The Advisory Committee Notes to the 1993 amendment ...

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