The Oregon Supreme Court case State of Oregon v. Douglas Leroy Riddle involves the admissibility of expert testimony in a criminal trial. The court reversed the Court of Appeals' decision and remanded the case for further proceedings. The key issue was whether a defendant could prevent an accident reconstruction expert, initially hired by the defense, from testifying for the state regarding an opinion formed during that employment. The court ruled that a privilege preventing such testimony cannot be solely based on the expert's previous connection to the defense.
In the case, Riddle was involved in a fatal accident, leading to charges of manslaughter and driving while intoxicated. During the trial, both the prosecution and defense presented their accident reconstruction experts, with differing opinions on the cause of the accident. The state sought to introduce a third expert, Myers, to rebut the defense’s testimony. Riddle's defense objected, claiming Myers's opinion was privileged due to his prior work for the defense. The prosecutor acknowledged this connection but argued that Myers had disclosed his opinion without relying on privileged communications. The trial court allowed Myers to testify, which was upheld by the Supreme Court, affirming the trial court's ruling.
Defendant's counsel contended that Bouck had shared privileged information with Myers, tainting Myers's involvement. The court allowed testimony from both parties, including an in-camera statement from Bouck, who explained that he hired Myers for consultation on the accident. Bouck detailed their site visit, discussions on potential crash theories, and mentioned sharing a statement from the defendant. He clarified that Myers provided an oral opinion without a written report. During cross-examination, Bouck indicated that Myers's opinion was based primarily on physical evidence rather than any statements from the defendant.
The trial court ruled that Myers could not reference his prior work for the defense or any statements from the defendant, but permitted him to testify with certain restrictions. Following Myers's testimony, the jury found the defendant guilty of multiple charges, including criminally negligent homicide. The defendant appealed, arguing that Myers's opinion was protected under attorney-client privilege or as attorney work product. The Court of Appeals agreed, stating that Oregon law extends the attorney-client privilege to nontestifying experts' opinions made in anticipation of litigation, leading to a reversal. The case was reviewed by the state, with the defendant asserting both OEC 503 (attorney-client privilege) and the work-product doctrine as bases for excluding Myers's testimony, which the Court of Appeals recognized as valid grounds for privilege.
The Court of Appeals majority referenced the precedent established in Brink et ux v. Multnomah County regarding the attorney-client privilege, as outlined in OEC 503, which is the statutory embodiment of this privilege in Oregon. OEC 503(2) grants clients the right to refuse disclosure of confidential communications made for the purpose of obtaining legal services, specifically between the client (or their representative) and the lawyer, as well as between the lawyer and their representative. "Confidential communication" is defined by OEC 503(1)(b) as communications not intended for disclosure to third parties, except those necessary for rendering legal services. The term "representative of the lawyer" includes individuals employed to assist the lawyer.
In this case, Myers qualifies as a "lawyer's representative" under OEC 503(2) since he was hired by Bouck to aid in the defense. It is established that Myers and Bouck engaged in confidential communications aimed at facilitating legal services. The critical issue is whether Myers's testimony included "confidential communications" as per OEC 503(2). The defendant and the Court of Appeals majority argue that any testimony from Myers related to his investigation falls under the attorney-client privilege.
However, the ruling clarifies that privilege pertains to communications, not merely the relationship between lawyer and expert. The statute does not define "communication," so the ordinary meaning is applied, defined as an interchange of thoughts or opinions. While Myers communicated his observations and opinions about the crash to Bouck, the state cannot present these communications to the jury. Importantly, the distinction is made between the content of the communication and Myers's independent opinions and observations, which were not derived from any interaction with the defendant or Bouck.
OEC 503 grants a privilege for communications but does not extend this privilege to opinions derived from those communications. The defendant argues that OEC 503(2) pertains to the content of the expert's report, not merely its form or existence, citing *State v. Keenan/Waller* to support that information disclosing the substance of a communication falls under the privilege. However, this argument is flawed as the opinion in question was not based on any confidential communication. OEC 503(2) applies to confidential communications between the expert, Myers, and the defendant's lawyer, but does not protect Myers's opinion if it exists independently of those communications. The Court of Appeals previously interpreted OEC 503(2) differently, referencing pre-Oregon Evidence Code cases and suggesting a relationship with the work-product doctrine. The Legislative Commentary indicates that the privilege applies to experts assisting in legal advice but does not extend to their opinions segregated from communications. The Court of Appeals' reliance on cases like *Brink* does not support a different interpretation of OEC 503(2) than the one presented, as *Brink* involved issues of witness testimony and did not address the privilege under OEC 503 directly.
Kolberg testified about his investigation of a property and stated he had prepared a written report for the county, which he refused to produce unless ordered by the court. He acknowledged making an estimate of damages but declined to provide a specific amount when questioned by the plaintiffs, leading to an objection from the county. The court ruled that Kolberg could not provide an opinion on damages, citing the objectionable nature of the question. The trial court suggested a possible proper method for eliciting testimony and offered to clarify this in chambers, but the plaintiffs had no further questions, and Kolberg was excused. The jury later awarded the plaintiffs a sum slightly higher than the county's initial offer. The plaintiffs appealed, claiming error in the exclusion of Kolberg's testimony. The appellate court upheld the trial court's decision, stating that the plaintiffs failed to offer proof or pursue Kolberg's opinion after the ruling against them. Additionally, the court noted that Kolberg's communication with the county fell within the attorney-client privilege since it was made in the context of ongoing litigation. The plaintiffs argued the report should not be privileged, but the court found it was prepared for use in connection with the litigation, thus confirming the report's privileged status. The court's comments about privilege specifically referred to Kolberg's written report to the county.
The report in question is deemed privileged under Oregon Evidence Code (OEC) 503(2) as it constitutes a confidential communication from Kolberg to the county. The argument that Kolberg's opinion is not necessarily privileged, as suggested by the defendant, is rejected, and prior cases do not provide relevant insights for interpreting OEC 503(2). Specifically, a footnote in State v. Brown that discusses polygraph examinations is unrelated to the current issue. The text of OEC 503(2) clearly focuses on "communication" and establishes that if an expert is affiliated with a party's attorney, any confidential communications from the lawyer to the expert, as well as the expert's confidential reports, are protected. However, the privilege does not render the expert incompetent to testify about information or opinions developed independently of any confidential communication.
The defendant also argues that Myers's opinion should be excluded as "attorney work product." While federal cases support the notion that materials prepared by agents assisting attorneys can be protected under this doctrine, it is emphasized that the work-product doctrine aims to protect the attorney's mental processes. Thus, it covers materials prepared by agents for the attorney but is not automatically applicable to exclude testimony unless mandated by Oregon law. Consequently, the testimony in question is not excludable under the work-product doctrine unless dictated by a specific Oregon legal source.
The document addresses the rejection of the notion that the work-product doctrine is integrated into the Oregon Evidence Code through OEC 503(2). The defendant references ORS 135.855(1), which states that certain materials—including work product and legal opinions—are not subject to discovery in criminal cases. The defendant argues that this statute implies that work product includes opinions from an attorney's hired expert during the criminal investigation or defense. However, the court finds ORS 135.855(1)(a) does not authorize exclusion of Myers's trial testimony, noting that the statute pertains strictly to pretrial discovery and lacks provisions for evidentiary exclusion at trial. The court dismisses the argument from the Oregon Trial Lawyers' Association that pretrial protections imply similar trial protections, asserting that the statute's limited scope contradicts that view. The court references the case State v. Hartfield, which affirmed that ORS 135.855(1) is confined to pretrial matters. It further explores Oregon case law, particularly Nielsen v. Brown, which rejected similar work-product exclusion arguments regarding expert testimony, suggesting that expert opinions do not align neatly with the concept of attorney work product.
The Nielsen court addressed the issue of whether a party can compel an expert, employed by the opposing side, to testify regarding their findings and opinions. The court clarified that it is not bound by the work product doctrine, which typically protects an attorney's thoughts and investigations from disclosure, and rejected the idea that an expert's independent thoughts are solely the work product of the hiring attorney. While the court limited its ruling to the specific case facts, it emphasized that there is no absolute privilege preventing an expert engaged for factual investigation from testifying for the opposing party, provided the testimony does not include confidential communications.
The defendant contended that the trial court erred by allowing Myers, the expert, to testify because he had received confidential information from Bouck, who had communicated statements made by the defendant and discussed various defense theories. The defendant argued that any exposure to such information would inherently affect Myers' testimony. However, the court disagreed, stating that the determination of whether an expert's testimony is influenced by confidential communications is a factual question. If the trial court correctly applies the relevant legal principles, its findings will be upheld if supported by evidence. In this case, there was evidence that Myers claimed he would conduct an independent investigation and base his opinion on physical evidence and personal observations, suggesting a separation from the confidential information discussed.
Defendant raised concerns regarding the potential influence of Bouck's work product on Myers's expert opinion, but the trial court found this unlikely due to Myers's expertise. The court concluded that, despite Myers's exposure to confidential communications, he could provide testimony that was fully segregated from those matters. No objections were made during Myers's testimony regarding any violations of the court's restrictions or unauthorized use of Bouck's insights. It was determined that the lawyer/expert relationship does not inherently disqualify an expert from testifying for another party unless their opinion is directly or indirectly derived from confidential communications. If an expert's opinion is so intertwined with such communications that segregation is unfeasible, they should not be allowed to testify. The trial court has various tools to protect privilege, including examining the expert, issuing orders in limine, and granting mistrials if confidential information is sought through testimony. The Court of Appeals' earlier decision was found to be erroneous and was reversed, with the case remanded for consideration of the defendant's other assignment of error. Additionally, the court rejected the defendant's argument for exclusion of Myers's testimony as work product under ORCP 36 B(3), affirming that ORS 135.855(1) is the specific governing statute. The court noted that the current interpretation is a minority view but is supported by an expert in evidence law.
