Emergency Care Dynamics, Ltd. v. Superior Court In and For County of Maricopa

• Decision Date: 04 February 1997
• Docket Number: CA-SA,No. 1,1
• Parties: , 65 USLW 2538, 1997-2 Trade Cases P 71,929, 236 Ariz. Adv. Rep. 10 EMERGENCY CARE DYNAMICS, LTD., an Arizona professional corporation; Tamsen Professional Services, LTD., an Arizona professional corporation; and Mark J. Tamsen, M.D., Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Elizabeth A. Stover, a judge thereof, Respondent Judge, MOHAVE EMERGENCY PHYSICIANS, INC., an Arizona professional corporation; Mohave Emergency Physicians, II, INC., an Arizona professional corporation; David C. Welch, D.O. and Carol Pettrone, husband and wife; David C. Welch, D.O., P.C., an Arizona professional corporation; Jose L. Gochoco, D.O. and Catherine E. Gochoco, husband and wife; Jose L. Gochoco, D.O., P.C., an Arizona professional corporation, Real Parties in Interest. 96-0140.
• Court: Arizona Court of Appeals

Page 297

932 P.2d 297

188 Ariz. 32, 65 USLW 2538, 1997-2 Trade Cases P 71,929,

236 Ariz. Adv. Rep. 10

EMERGENCY CARE DYNAMICS, LTD., an Arizona professional corporation; Tamsen Professional Services, LTD., an Arizona professional corporation; and Mark J. Tamsen, M.D., Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Elizabeth A. Stover, a judge thereof, Respondent Judge, MOHAVE EMERGENCY PHYSICIANS, INC., an Arizona professional corporation; Mohave Emergency Physicians, II, INC., an Arizona professional corporation; David C. Welch, D.O. and Carol Pettrone, husband and wife; David C. Welch, D.O., P.C., an Arizona professional corporation; Jose L. Gochoco, D.O. and Catherine E. Gochoco, husband and wife; Jose L. Gochoco, D.O., P.C., an Arizona professional corporation, Real Parties in Interest.

No. 1 CA-SA 96-0140.

Court of Appeals of Arizona,

Division 1, Department D.

Feb. 4, 1997.

[188 Ariz. 33] Steptoe & Johnson, L.L.P. by David J. Bodney, Peter B. Swann, Lisa L. Glow and Tracy L. Wareing, Phoenix, for Petitioners.

Broening, Oberg, Woods, Wilson & Cass, P.C. by James R. Broening, Cynthia Cheney and David S. Cohen, Phoenix, for Real Parties In Interest Mohave Emergency, Gochoco, and Welch.

OPINION

FIDEL, Presiding Judge.

The rule of work-product immunity bars adversary discovery of a lawyer's mental impressions, conclusions, opinions, and legal theories concerning a pending or impending case. But does the rule immunize a lawyer's communications to an expert witness on a subject the expert will testify about at trial? And if the expert has been hired not only to testify, but also to help the lawyer prepare for trial, does this dual role immunize communications that would lack immunity if the expert were hired for testimony alone? These questions are presented in this special action. We hold that a lawyer forgoes work-product protection for communications with an expert witness concerning the subject of the expert's testimony even if the expert also plays a consulting role.

I.

The underlying lawsuit is an antitrust and breach-of-contract action, whose merits do not concern us here. Petitioners, the plaintiffs, hired Michael J. Williams, an "antitrust expert," for testimony and consultation. The Real Parties In Interest, preparing to depose Williams, served him with a subpoena duces tecum, commanding him to produce his entire case file. Petitioners moved to quash both this subpoena and another to Williams's custodian of records. Invoking work-product immunity, Petitioners' lawyers argued that Williams's file contained protected hypotheses, mental impressions, and litigation strategies that they had explored with Williams in his consulting role. The trial court denied Petitioners' motion and ordered them to produce the file; the court declined to first review the file in camera.

Petitioners seek relief by special action. We accept jurisdiction. "When a trial court orders disclosures that a party or witness believes to be protected by a privilege, appeal provides no remedy. Special action is the proper means to seek relief." Church of Jesus Christ of Latter-Day Saints v. Superior Court, 159 Ariz. 24, 25-26, 764 P.2d 759, 760-61 (App.1988).

II.

If Petitioners had engaged Williams as a consulting, not testimonial, expert and chosen a different expert to testify at trial, Petitioners' lawyers could protect their communications with Williams under Rule 26(b)(4)(B), Arizona Rules of Civil Procedure, 16 Ariz.Rev.Stat. Ann. ("A.R.S.") (1987 & Supp.1996) (relating to discovery from experts retained for trial preparation but not expected to testify). Cf. State ex rel. Corbin v. Ybarra, 161 Ariz. 188, 193, 777 P.2d 686 691 (Ariz.1989)(reports from experts are attorney work product when those experts will not be presented as witnesses at trial). What differentiates this case is that Williams was retained as both a testimonial and consulting expert. The question follows whether Petitioners' lawyers have sacrificed work-product protection that would have shielded their communications with a consulting expert by using their testimonial expert for that role.

To respond, we first examine Rules 26(b)(3) and 26(b)(4) of the Arizona Rules of Civil Procedure. The former constitutes Arizona's work-product rule. The latter governs discovery from testimonial and consulting experts.

Rule 26(b)(3) (Supp.1996) provides in pertinent part:

Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Rule 26(b)(4) provides in pertinent part:

Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) [relating to interrogatories]. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope ... as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Subsection (B) of Rule 26(b)(4) imposes a substantial barrier against discovery from consulting experts--those not expected to be called as witnesses at trial. Subsection (A)(ii), in contrast, extends the trial court broad authority to order such discovery from a testimonial expert "as the court may deem appropriate." ¹ The rule, however, does not expressly address whether such discovery may extend to the expert's communications with counsel. Nor does it address what happens when the expert plays a joint consulting and testimonial role. Curiously, these questions are of first impression in Arizona. Decisions under Federal Rule 26 are split.

In Bogosian v. Gulf Oil Corp., 738 F.2d 587, 593 (3d Cir.1984), the Third Circuit extended work-product protection to documents that lawyers had provided to a testimonial expert containing the lawyers' " 'mental impressions and thought processes relating to the legal theories' " of the case. The court found only "marginal value in the revelation on cross-examination that the expert's view may have originated with an attorney's opinion or theory," and concluded that this marginal value did not "warrant overriding the strong policy against disclosure of documents consisting of core attorney's work product." Id. at 595 (footnote omitted); accord Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D.Mich.1995).

The leading case for the contrary position is Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 387 (N.D.Cal.1991), which holds:

[A]bsent an extraordinary showing of unfairness that goes well beyond the interests generally protected by the work product doctrine, written and oral communications from a lawyer to an expert that are related to matters about which the expert will offer testimony are discoverable, even when those communications otherwise would be deemed opinion work product.

Accord United States v. City of Torrance, 163 F.R.D. 590 (C.D.Cal.1995); Furniture World, Inc. v. D.A.V. Thrift Stores, Inc., 168 F.R.D. 61 (D.N.M.1996). The Intermedics court rejected the premise that only marginal value is achieved by permitting cross-examiners to explore whether an expert's opinions have originated with counsel. 139 F.R.D. at 397. Rather, the court stated:

[I]t would be fundamentally misleading, and could do great damage to the integrity of the truth finding process, if testimony that was being presented as the independent thinking of an "expert" in fact was the product, in whole or significant part, of the suggestions of counsel. The trier of fact has a right to know who is testifying.

Id. at 395-96. The court acknowledged that work-product immunity enables lawyers "to think dispassionately, reliably, and creatively both about the law and the evidence," and permits them "to preserve the privacy of their mental processes and to prevent others from 'leeching' off their work." Id. at 392. But lawyers can adequately maintain such protection, the court concluded, by choosing separate experts for testimony and consultation, recognizing in advance that their communications with testifying experts are likely to be discoverable. Id. at 392-93.

We find Intermedics more compatible than Bogosian with discovery rules and practice in this state. Arizona has long favored full cross-examination of expert witnesses. In Middleton v. Green, 35 Ariz. 205, 210-11, 276 P. 322, 324 (1929), a personal injury case, the trial court refused to permit defendants' lawyer to ask plaintiff's doctor whether he first learned of plaintiff's condition from plaintiff's counsel. Defendants contended that "they had a right, not being bound by the statement of a witness for plaintiff, to examine him fully as to the source of his...