Tuesday, January 5, 2016

Appraiser Expert Witness Issue: Discovery of Draft Expert Witness Reports (Draft Appraisals) in State Court - a Chart

Appraiser Michael Brunson, SRA, MNAA, and I recently wrote an article for the Appraisal Institute's 4th Quarter 2015 edition of Valuation entitled “Getting Ready for Expert Witness Work: 10 Practice Pointers.”   One of the pointers is that while the Federal Rules of Civil Procedure (Rule 26) now generally protect a retained expert witness's draft reports (e.g., draft appraisals) from discovery by the opposing party, appraisers need to understand that if a litigation is pending in state court and thus subject to the state's rules of civil procedure, the protection regarding drafts may be different or non-existent.  We suggested that expert witness appraisers should have a specific discussion with the attorney retaining them about the preparation and retention of draft appraisal reports and about the potential for being required to produce them as part of the discovery process. 

The following excerpt from the article discusses the importance of understanding the potential “discoverability” of a draft report:

Understand the “discoverability” of information in your workfile.
Attorneys and expert witness appraisers need to pay close attention to whether or not draft materials and other preliminary content in their workfiles will be available to the other side in discovery. In federal court, the discoverability of draft reports is pretty clear: under the revised version of Rule 26 of the Federal Rules of Civil Procedure that took effect in 2010, draft reports and communications with the attorney who retained the expert are not subject to regular discovery by the other side. However, there’s a catch: many states have rules of civil procedure that do not follow the federal rule, which means that if you are a testifying expert in a state court case in, say, California, any draft reports you’ve created and your correspondence with the attorney may be fully discoverable by opposing counsel. Accordingly, in California and states with similar laws [], attorneys generally do not want their testifying experts to create drafts until their likely opinions and underpinnings to them are established.
The bottom line for appraisers hired as experts with respect to draft reports and written communications with the attorney? Get the attorney’s specific direction on this matter at the beginning of the engagement (different attorneys will have different points of view) and maintain your workfile as if everyone in the case — including the opposing side — will see it.
We have researched and prepared the chart below in an attempt to summarize whether draft reports may be discoverable under the rules of civil procedure or case law in particular states.  It should be noted that this information is for the purpose of initiating a discussion between the appraiser and retaining legal counsel about whether drafts should be created in the course of the assignment and how they should be handled. The summary below is general to civil litigation in each state. Some states have different rules for certain types of litigation -- in particular, states often have special rules for condemnation action appraisals (and drafts thereof).


“Discoverable” in the chart means that an opposing party potentially could obtain an expert’s draft report through proper discovery methods (such as by document demand or subpoena).  Where the issue was not clearly determined by a state’s rules, it has been noted as “undetermined” in the chart.  It is also important to understand that most states which deny discovery of draft reports have limited exceptions to the rule -- another reason to have a specific discussion with the attorney retaining you as an expert witness.


State Court
Are Draft Reports of a Testifying Expert Witness Discoverable?
Comments
Alabama
Likely Not Discoverable
Ex parte Tuscaloosa County, 825 So. 2d 729 (Ala. 2001) (denying discovery from appraisal expert beyond specific matters identified in Ala. R. Civ. P. 26(b)(4)).
Alaska
Undetermined
Arizona
Likely Discoverable
Arizona Supreme Court declined to adopt protection for draft reports of testifying expert witnesses.
Arkansas
Likely Not Discoverable
California
Discoverable
California law does not extend protection to drafts reports of testifying expert witnesses.
Colorado
Not Discoverable
Colorado Rule of Civil Procedure 26(b)(4)(D) (effective July 1, 2015).
Connecticut
Likely Discoverable
Connecticut Practice Book Section 13-4(b) suggests expert's entire file is subject to discovery.
Delaware
Not Discoverable
Delaware Superior Court, Rules of Civil Procedure, Rule 26(b)(5).
Florida
Likely Discoverable
See, e.g., Peck v. Messina, 523 So. 2d 1154 (Fla. Dist. Ct. App. 1988).
Georgia
Likely Not Discoverable
See McKinnon v. Smock, 434 S.E.2d 92, 93 (Ga. Ct. App. 1993).
Hawaii
Undetermined
Idaho
Not Discoverable
Idaho Rule of Civil Procedure 26(b)(4)(2) (effective July 1, 2014).
Illinois
Discoverable
Illinois Supreme Court Rule 213.
Indiana
Potentially Discoverable
Indiana has not adopted 2010 revision to FRCP 26(b)(4).
Iowa
Not Discoverable
Iowa Rule of Civil Procedure Rule 1.508(1)(d).
Kansas
Not Discoverable
Kansas Statute Section 60-226(b)(5)(B).
Kentucky
Potentially Discoverable
Hager v. Allstate Ins. Co., No. 2007-CA-002599-MR (Ky. App. Oct. 16, 2009) (drafts reports discoverable if relevant to impeachment or credibility).
Louisiana
Not Discoverable
Louisiana Code of Civil Procedure 1425.
Massachusetts
Generally Not Discoverable
Mass. Rule of Civil Procedure 26(b)(3).
Maine
Not Discoverable
Maine Rule of Civil Procedure 26(b)(4) (effective September 1, 2014).
Maryland
Likely Discoverable
Maryland Rule 2-402(e)(1) provides for discovery of "any written reports made by the expert."
Michigan
Not Discoverable
See Franzel v. Kerr Mfg. Co., 600 N.W.2d 66 (Mich. Ct. App. 1999).
Minnesota
Likely Not Discoverable
Minnesota practitioners generally do not regard drafts as discoverable, though Minnesota's rules do not provide express protection.
Mississippi
Undetermined
Missouri
Potentially Discoverable
Draft reports are not expressly protected in Missouri's rules and a Missouri appellate court has suggested that testifying expert's file is not protected. State ex rel. Tracy v. Dandurand, 30 S.W.3d 831, 835 (Mo. 2000).
Montana
Undetermined
Nebraska
Likely Not Discoverable.
See Podraza v. New Century Physicians of Neb., LLC, 789 N.W.2d 260 (Neb. 2010).
Nevada
Likely Discoverable
Nevada rules do not contain a protection against discovery of draft reports.
New Hampshire
Undetermined
New Mexico
Undetermined
New York
Not Discoverable
New York's Civil Practice Law and Rules (“CPLR”) provides very limited discovery regarding experts, outside of Commercial Division cases.  However, procedures are different for condemnation, and draft reports in condemnation cases may be discoverable.
New Jersey
Not Discoverable
New Jersey Court Rule 4:10-2(d).
North Carolina
Not Discoverable
N.C. R. CIV. P. 26(b)(4)(d) (effective for cases filed on or after October 15, 2015)
North Dakota
Undetermined
North Dakota has not adopted the 2010 change in FRCP 26 regarding discoverability of draft reports.
Ohio
Not Discoverable
Ohio Rule of Civil Procedure 26(B)(5)(b) (effective July 1, 2012).
Oklahoma
Not Discoverable
Oklahoma Statutes, Title 12, Civil Procedure Section 3226(B)(4).
Oregon
Not Discoverable
Discovery in Oregon state courts is far more limited than in other states.
Pennsylvania
Not Discoverable
Pennsylvania Rule of Civil Procedure 4003.5.
Rhode Island
Undetermined
South Carolina
Undetermined
South Dakota
Not Discoverable
South Dakota Statutes, Title 15, Civil Procedure Section 15-6-26(b).
Tennessee
Not Discoverable
Texas
Likely Discoverable
Texas Rule of Civil Procedure 192.5 suggests that no work product protection exists for draft reports.
Utah
Not Discoverable
Utah Rules of Civil Procedure, Rule 26(b)(7)(A).
Virginia
Likely Not Discoverable
Moyers v. Steinmetz, 37 Va. Cir. 25 (1995).
Vermont
Not Discoverable
Vermont Rule of Civil Procedure 26(b)(4)(B).
Washington
Likely Not Discoverable
West Virginia
Undetermined
Wisconsin
Potentially Discoverable
Wisconsin law does not extend specific protection to drafts reports of testifying expert witnesses and rule making commentary suggests that the attorney work product protection is lost with respect to testifying experts.
Wyoming
Undetermined



The above chart is subject to continued research and updating. Please forward comments, potential corrections and updates to Peter Christensen at peter@liability.com.