Other Practical Considerations
Given the lack of the appellate case law in Ohio under the new rule, the question becomes: what practical steps can attorneys take when communicating with experts to increase the likelihood of receiving a favorable ruling in a dispute concerning attorney-expert communications? First, consider breaking down your attorney-expert communications and organize and label them accordingly. Insist that your expert do the same. I would suggest even labeling the items “Civ. R. 26(B)(5) protected.”
Draft reports should be clearly labeled “draft report,” “work product,” and “privileged.” Similar wording should also be placed in the caption of any cover letter, email, or fax cover sheet that is transmitted with the draft report. Do not needlessly allow any basis for your adversary to argue that a draft report is anything but a draft.
Second, in any written attorney-expert communications, state the precise nature of the communication in the “RE:” field. If your communication concerns facts or data that you are providing to the expert, caption the email “identification of facts or data.” Likewise, if your communication concerns your assumptions regarding the case, caption the email “identification of attorney assumptions.” You may also want to consider having the expert separate his or her bill to reflect time spent preparing a draft report, reviewing facts/data, and reviewing attorney assumptions. You should consider doing the same on your timesheets as well.
One of the reasons to employ this exercise of labeling and captioning is because upon the filing of a motion to compel, the documents in question are subject to in camera review. In fact, the Eighth District has stated that “it is reversible error when a trial court fails to hold an evidentiary hearing or conduct an in camera review concerning discovery disputes alleging work-product privilege[.]” Harvey v. KP Props., 8th Dist. No. 97097 2012-Ohio-276, ¶11. Having the document captioned accurately suggests their classification (“draft report,” “attorney assumptions,” etc.) and will be helpful to the court’s analysis.
Another practical question to consider: what to do upon receiving a motion to compel the disclosure of a draft report or protected attorney-expert communication? Keep in mind that the Ohio Supreme Court has indicated that Civ. R. 26(B)(3) provides protections for attorney work product, and Civ. R. 26(B)(5)(c)&(d) are clear that draft reports and attorney-expert communications are afforded the Civ. R. 26(B)(3) protections. Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. (2010), 127 Ohio St. 3d 161, 175. Therefore, upon receiving a motion to compel concerning a draft of an expert report or attorney-expert communications that you believe are privileged, the first step will be the mandatory in camera review. See Harvey, supra. Note that an order to produce presumptively privileged documents for in camera review is not a final appealable order. Cobb v. Shipman, 11th Dist. No. 2011-T-0049 2012-Ohio-1676, ¶24. Provide the disputed documents to the court (which were labeled “draft report,” “work product,” “privileged,” etc. upon creation) and any other materials that support your position.
After the in camera review, the court will issue its order, hopefully in your favor. However, an order compelling the production of presumptively privileged material to an opposing party does constitute a final appealable order and will be immediately reviewable by an appellate court. Cobb v. Shipman, 11th Dist. No. 2011-T-0049 2012-Ohio-1676, ¶35, citing R.C. 2505.02(B)(4). Therefore, if the trial court’s order is not favorable, you must consider an immediate appeal at that point, keeping in mind that the trial court’s decision will be reviewed de novo. Harvey v. KP Props., 8th Dist. No. 97097 2012-Ohio-276, ¶7.
While questions regarding the “good cause” exception to the discoverability of drafts of expert reports and the extent to which attorney-expert communications are protected from disclosure will likely persist into the future, Ohio Civil Rule 26(B)(5) now provides at least some guidance with respect to these topics. It will be important for trial lawyers to keep an eye on the courts in regard to the appellate decisions that will surely be handed down concerning these issues in the near future. In the interim, federal court decisions concerning application of the similar Federal Rule will be the best place to look for guidance.
If you have questions about any of the legal issues raised in this blog, contact Dodosh Law Offices, LLC at (440) 298-2344. Or, you can fill out a contact form and Attorney Dodosh will get in touch with you.