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American Fidelity Assurance Co. v. Boyer
Citations: 225 F.R.D. 520; 60 Fed. R. Serv. 3d 382; 2004 U.S. Dist. LEXIS 27214; 2004 WL 2797452Docket: Nos. C/A 3:03-1367-24, C/A 3:03-1434-24
Court: District Court, D. South Carolina; August 24, 2004; Federal District Court
Plaintiff American Fidelity Assurance Co. has initiated a lawsuit against former employees Todd Bidwell and Ladonna Boyer, as well as their current employer, Combined Insurance Company of America, alleging breaches of a non-compete clause in their employment contracts. The claims include breach of contract, civil conspiracy, and intentional interference with contractual relations. During a court hearing on July 2, 2004, the Defendants sought to compel the disclosure of documents related to the Plaintiff's expert witnesses, Phillip G. Brimer and A. Joy McDonald, specifically their reports and any materials consulted in their preparation. The Defendants argue that such information is discoverable under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure (FRCP), which mandates that expert reports include all opinions and the basis for those opinions. The Plaintiff opposes this request, citing attorney-client privilege concerning work product as per Rule 26(b)(3), which protects an attorney’s mental impressions and legal theories. The court conducted an in-camera review of the disputed materials and noted a division among courts regarding the discoverability of communications between attorneys and expert witnesses. Commentary on Rule 26 indicates that while attorneys can assist experts in report preparation, any information considered by the expert in forming their opinions is generally not protected from disclosure. The court referenced the Musselman case, which affirmed that if an attorney's work product is provided to an expert and considered in their opinion, it loses its privileged status. The court highlighted the importance of this rule for effective cross-examination of expert witnesses, ensuring that all relevant information influencing their opinions is accessible to promote the integrity of the truth-finding process. Disclosure of work product to an expert does not breach the work product doctrine, as it does not lead to the development of new legal theories or enhance factual investigations. Instead, the work product serves to inform the expert of relevant facts or to influence their opinion. The application of a "bright line test" maintains the work product privilege by ensuring clarity on what documents can be disclosed; attorneys can protect genuine work product by withholding it from experts. The court, referencing Musselman, emphasized the importance of expert testimony in trials, noting its potential to be powerful yet misleading due to the specialized knowledge involved. Effective cross-examination is crucial to reveal weaknesses in expert testimony. The court highlighted the necessity for parties to discover not only the expert’s opinions but also the basis for those opinions to evaluate their credibility. This includes understanding whether the expert’s conclusions stem from an independent analysis or were shaped by an attorney’s guidance. The court found the reasoning from Musselman compelling and granted the defendants' motions to compel.