Crowe Countryside v. Novare Engineers

• Decision Date: 01 February 2006
• Docket Number: No. 2004-204-M.P.,2004-204-M.P.
• Citation: 891 A.2d 838
• Parties: CROWE COUNTRYSIDE REALTY ASSOCIATES, CO., LLC v. NOVARE ENGINEERS, INC.
• Court: Rhode Island Supreme Court

Page 838

891 A.2d 838

CROWE COUNTRYSIDE REALTY ASSOCIATES, CO., LLC v. NOVARE ENGINEERS, INC.

No. 2004-204-M.P.

Supreme Court of Rhode Island.

February 1, 2006.

Matthew H. Leys, Esq., Newport, for Plaintiff.

James S. D'Ambra, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice SUTTELL, for the Court.

We issued a writ of certiorari in this case to address an important issue under Rule 26(b) of the Superior Court Rules of Civil Procedure concerning the extent to which a party may obtain discovery of written communications between an opposing party's attorney and its testifying expert witness. In a matter of first impression in Rhode Island, we are called upon to review the interaction of two fundamental principles underlying our adversarial system: the liberal theory of discovery embodied in the Rules of Civil Procedure, and the work-product doctrine.

In this case, a motion justice of the Superior Court ruled that all of an attorney's correspondence to an expert witness was subject to discovery. For the reasons set forth herein, we quash the order of the Superior Court and remand for an in camera review of the requested documents.

I Facts and Procedural History

This matter arises from an engineering malpractice case involving allegedly negligent advice about a fire alarm system in which plaintiff, Crowe Countryside Realty Associates, Co., LLC (Crowe), has retained three experts: an expert in the field of engineering, an expert in the field of fire safety, and an expert in the field of real estate evaluation and appraisal. Responding to interrogatories served by defendant, Novare Engineers, Inc. (Novare), plaintiff identified each of these individuals as an expert who was expected to testify at trial. On June 18, 2004, defendant issued subpoenas duces tecum to all three experts, commanding their attendance at a deposition on June 24, 2004, and further commanding them to bring "[a]ny and all records relating in any way to [their] review, evaluation and formation of opinions in connection with the * * * litigation." On June 22, 2004, plaintiff filed motions for protective orders, asserting that the subpoenas sought materials protected from discovery by the work-product privilege.

A justice of the Superior Court heard the motions on June 23, 2004. At the hearing, Crowe argued that communications between its counsel and testifying experts constituted "trial preparation material." The plaintiff contended that to obtain discovery of such items under Rule 26(b)(3), Novare was required to show that it had a substantial need of the materials and that it could not obtain the substantial equivalent of the materials by other means without undue hardship. See Rule 26(b)(3). The motion justice rejected this argument, ruling that once an expert witness is designated as a testifying expert, "any and all documents which were exchanged, which in any way relate to the opinion that he's given in the case or is prepared to give in the case" are discoverable.

Crowe next argued that at least one of the documents subject to the subpoenas contained the mental impressions, conclusions, opinions, and/or legal theories of its attorney, causing the material to be immune from discovery. The motion justice rejected this argument also, stating, "[y]ou have to be careful what you share with testifying experts, because whatever you share with them is subject to scrutiny." As a result, the motion justice denied plaintiff's motions.

On July 8, 2004, plaintiff filed a petition for writ of certiorari, which we granted on April 15, 2005. In the interim, the motion justice granted plaintiff's motion to stay the trial and enforcement of the subpoenas, pending our determination of said petition. On certiorari, Crowe argues that the motion justice should have taken measures to protect its attorney's work product by, for example, either refusing to order the production of the documents or ordering that the mental impressions, conclusions, opinions, and legal theories of Crowe's attorney be redacted from any documents otherwise discoverable. Contrarily, Novare argues that any correspondence from an attorney that is considered or relied on by a testifying expert is discoverable under Rule 26(b)(4).

II Standard of Review

Generally, this Court's review on writ of certiorari is limited "to examining the record to determine if an error of law has been committed." State v. Santiago, 799 A.2d 285, 287 (R.I.2002) (quoting State v. Gautier, 774 A.2d 882, 886 (R.I.2001)). We do not weigh the evidence on certiorari, but only conduct our review to examine questions of law raised in the petition. Boucher v. McGovern, 639 A.2d 1369, 1373 (R.I.1994). "Questions of law, however, including questions of statutory interpretation, are reviewed de novo by this Court." Carnevale v. Dupee, 783 A.2d 404, 408 (R.I.2001). Because our task in this case is to interpret and calibrate the tension between subdivisions (b)(3) and (b)(4) of Rule 26 so that we may properly apply them to defendant's discovery requests, our review is de novo.

III Discussion

The question herein presented is whether and to what extent under Rule 26, subdivisions (b)(3) and (b)(4), the work-product doctrine applies to documents and other materials reviewed by expert witnesses expected to testify at trial. Rule 26 of the Superior Court Rules of Civil Procedure is based on the 1970 version of the corresponding Federal Rule of Civil Procedure. Advisory Committee's Notes to Rule 26. "This [C]ourt has stated previously that where the federal rule and our state rule of procedure are substantially similar, we will look to the federal courts for guidance or interpretation of our own rule." Smith v. Johns-Manville Corp., 489 A.2d 336, 339 (R.I.1985). Because subdivision (b) of Rule 26, which is at the crux of our inquiry today, is substantially similar to its 1970 federal counterpart, this Court will look to federal court decisions interpreting that version of Fed.R.Civ.P. 26(b) for guidance.

Before December 1, 1993, when Congress amended Fed.R.Civ.P. 26, many federal courts had addressed the precise question we face today with respect to the federal rule, reaching inconsistent results. Compare Boring v. Keller, 97 F.R.D. 404, 404-05, 408 (D.Colo.1983) (mem.) (addressing the issue and holding that discovery of all work product reviewed by testifying experts was necessary for impeachment), and Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 385, 397 (N.D.Cal.1991) (interpreting Fed.R.Civ.P. 26 to mean that "communications from counsel to a testifying expert are discoverable to the extent that they relate to matters about which the expert will testify"), with Bogosian v. Gulf Oil Corp., 738 F.2d 587, 588-89, 595-96 (3d Cir.1984) (addressing the issue and holding that the federal rule required factual work product shared with a testifying expert to be fully discoverable, while the mental impressions, conclusions, opinions, and theories of an attorney were protected), and Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 293-94 (W.D.Mich.1995) (answering the question by holding that while discovery of facts known and opinions held by a testifying expert was permitted, the mental impressions, conclusions, opinions, and theories of the attorney were absolutely protected). Indeed, Congress amended the federal rules in 1993 partially to resolve this divergence of opinion. See Advisory Committee's Notes to Fed.R.Civ.P. 26 (1993 Amendments) ("[L]itigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions * * * are privileged or otherwise protected from disclosure when such persons are testifying or being deposed."). In contrast, subdivisions (b)(3) and (b)(4) of Rhode Island's Rule 26 continue to display substantially the same wording as the 1970 Fed.R.Civ.P. 26, with a few variations irrelevant to our analysis today. Compare Rule 26 (language of (b)(3) and (b)(4)), with Fed.R.Civ.P. 26 (1970 version) (language of (b)(3) and (b)(4)).

A. The Work-Product Privilege

The viability of the work-product privilege under the Federal Rules of Civil Procedure was recognized by the United States Supreme Court in its landmark decision, Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947).¹ In Hickman, the plaintiff requested that opposing counsel produce witness statements and recount oral interviews with witnesses during discovery. Id. at 498-99, 67 S.Ct. 385. The Supreme Court denied the request, holding that most written materials "obtained or prepared * * * with an eye toward litigation" are protected from discovery. Id. at 511, 67 S.Ct. 385. In so holding, the Supreme Court noted that "[p]roper preparation of a client's case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference." Id. The Supreme Court stated that this policy against invading the privacy of an attorney's course of preparation was both well recognized and essential to an orderly working of the adversarial system. Id.

However, not all materials prepared by an attorney constitute protected work product. Hickman, 329 U.S. at 511, 67 S.Ct. 385. Unprotected materials might include documents that may be admissible as evidence or information that may be useful for corroboration or impeachment. Id. Precluding such information from discovery in certain circumstances would tend to strip the federal discovery rules of their liberal ideals. Id. at 511-12, 67 S.Ct. 385. Still, the Supreme Court indicated that it would be a "rare situation" that would justify disclosure of attorney work product, id. at 513, 67 S.Ct. 385, and that "[n]ot even the most liberal of discovery theories can justify unwarranted inquiries into the files and mental impressions of an...