Lawyers Must Zealously Insist on the Absolute Discovery Immunity Afforded to Opinion Work Product
By Brendan Faulkner, Esq. and Mike A. D'Amico, Esq.
D'Amico & Pettinicchi, LLC
The duty of zealous advocacy requires a lawyer to insist on the absolute discovery immunity afforded to her opinion work product. A lawyer cannot fairly represent her client unless certain matters remain private. Work product immunity provides a zone of privacy which allows a lawyer to explore and investigate every aspect of her case without fear of intrusion by opposing counsel. Allowing intrusion into this sacred zone of privacy provides the opposing side with an unfair advantage.
Work product immunity is especially important in working with expert witnesses. Most cases require thorough consultation with experts during pre-suit investigation, preparation of the case, and throughout discovery. If trial counsel cannot communicate with experts without intrusion from the opposing party, the purpose of the adversarial system is thwarted. The discovery immunity for opinion work product is therefore absolute.
The seminal decision for the work product doctrine is Hickman v. Taylor, 329 U.S. 495 (1947). In Hickman, the United States Supreme Court reasoned that if an attorney's statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs were open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten, and "an attorney's thoughts, heretofore inviolate, would not be his own." The work product doctrine has been codified at Connecticut Practice Book 13-3(a) and Rule 26(b)(3) of the Federal Rules of Civil Procedure.
Connecticut law makes clear that the work product doctrine protects "an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible items." Ullman v. State, 230 Conn. 698, 714 (1994); Practice Book 13-3(a) ("the judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation"); Amica Mut. Ins. Co. v. Fasarella Pro Painting & Design, LLC, 2011 Conn. Super. LEXIS 1910 (July 21, 2011, Jennings, J.) (observing that the work product doctrine most strongly protects the mental processes of the attorney); Matos v. Allstate Ins. Co., 2008 Conn. Super. LEXIS 3145, *3 (December 3, 2008, Jennings, J.) ("an attorney's opinion [and legal theory] work product ... is absolutely protected under 13-3"); Michaud v. Hendrikson, 1997 Conn. Super. LEXIS 3175, *2 (Nov. 26, 1997, Shortall, J.) (strategic considerations shared with expert not discoverable due to absolute protection for opinion work product).
Despite the important policy behind the protections for opinion work product, opposing counsel frequently seek to circumvent the work product protection by arguing that any mental impressions or strategies shared with an expert are not protected from disclosure. This misapprehends the law, and is an argument that strikes at the heart of the adversarial system. This argument should be vigorously opposed.
Opposing counsel may argue that recent changes to Practice Book 13-4 have created an ambiguity as to whether there are exceptions to the absolute protection provided by Practice Book 13-3(a). This question is unresolved at the appellate level.
The Connecticut Practice Book rules for expert disclosure were amended effective January 1, 2009. One of the changes was the obligation to provide an expert's complete file prior to the deposition. The Official Commentary to the 2009 amendments states that: "The revisions to this section are intended to facilitate meaningful depositions of experts and discovery of the reports and records of such experts." In particular, 13-4(b)(3) provides:
- Except for an expert who is a [treating physician], or unless otherwise ordered by the judicial authority or agreed upon by the parties, the party disclosing an expert witness shall, upon the request of an opposing party, produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case.
Section 13-4(c)(1) states:
- Unless otherwise ordered by the judicial authority upon motion, a party may take the deposition of any expert disclosed pursuant to subsection (b) of this section in the manner prescribed in Section 13-26 et seq. governing deposition procedure generally. Nothing contained in subsection (b) of this section shall impair the right of any party from exercising that party's rights under the rules of practice to subpoena or to request production of any materials, to the extent otherwise discoverable, in addition to those produced under subsection (b) of this section, in connection with the deposition of any expert witness nor shall anything contained herein impair the right of a party to raise any objections to any request for production of documents sought hereunder to the extent that a claim of privilege exists.
Read literally, 13-4(b)(3) could require production of notes made by an expert concerning conferences with an attorney but which did not involve conveying information that formed the basis for the expert's opinions in the case (i.e. if the expert made notes of conversations with counsel in preparation for the deposition of the expert well after the opinions have been formed). Such a result would controvert the well-established absolute immunity afforded to opinion work product by Practice Book 13-3(a) and decades of common law. Likewise it would make little sense to have different results depending upon whether the work product conveyed to the expert in conversation was memorialized in the form of notes.
Whether the immunity for opinion work product has been abrogated by the revisions to Practice Book 13-4 has not been decided by a Connecticut appellate court. A proper interpretation of the rule is that opinion work product that has been disclosed to an expert is protected from disclosure. See e.g., Michaud v. Hendrikson, 1997 Conn. Super. LEXIS 3175 (Nov. 26, 1997, Shortall, J.) (document containing statements of defense counsel of possible strategic considerations were protected from disclosure by the work product rule); see also Dutton v. Penzerro, judicial district of Waterbury at Waterbury, UWYCV075006617S, 198.01, (March 5, 2012, Sheedy, J.) (sustaining objection to motion to compel because, "[a]ny inquiry into counsel's work product in preparing a [lay] witness for deposition or in investigating the facts surrounding a particular incident which is the subject of litigation is protected by the work product privilege; to rule otherwise would be to place serious restraints upon an attorney's preparation of a client's case").
Tension arises when, during discovery, a trial court orders production of information the attorney believes in good faith to be protected work product. The duties of zealous advocacy and client confidentiality may require the lawyer to exhaust all appellate remedies before disclosing the opinion work product to the adversary. See Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 765-766 (Conn. 2012).
Given the appropriate case, the Connecticut Supreme Court should take the opportunity to clarify that the discovery immunity for opinion work product is indeed absolute. Alternatively, the Practice Book rules should be amended to state that 13-4(b) (requiring production of all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case) does not trump the absolute protection for opinion work product encapsulated in 13-3. Additionally, there should be an avenue for immediate appeal of discovery orders concerning work product immunity (and attorney-client privilege) because if such issues are incorrectly decided, the damage cannot be remedied. If the absolute protection afforded to such core work product is eroded, the adversarial system is weakened; and all clients' interests will not be well-served.
 Additionally, exceptions have been found under the federal rules, and there is (misguided) Connecticut law suggesting that opinion work product can be discoverable upon a heightened showing of need; and the line between factual and opinion work product is not always clear. Accordingly, despite the strong protections afforded to opinion work product by the state and federal rules, counsel should always carefully consider which information shared with an expert will remain protected and which might become discoverable, at least until the Connecticut Supreme Court accepts an opportunity to clarify this unfortunate confusion.