Expert Witness Discovery Versus the Work Product Doctrine : Choosing a Winner in Government Contract Litigation

Before an expert witness ever takes the stand at trial, the attorney who will cross-examine the expert has already made some attempt to discover the information underlying the expert's testimony (unless the attorney wants to actually use his or her malpractice insurance). In the federal courts, expert witness discovery is guided by the subdivisions of the federal rule addressing expert discovery, Federal Rule of Civil Procedure 26. Typically, the discovery process begins with the party who intends to offer expert witness testimony at trial providing the identity of the party's testifying expert to the opposing party. Anyone identified as a testifying expert prepares a written report stating the opinions to which the expert will testify, the bases of the opinions, and the data used in forming the opinions. THE WORK PRODUCT DOCTRINE. One of the surest methods of pausing, if not stopping, a line of deposition questions is to say: "Objection, calls for attorney work product." Attorney work product is treated as almost sacred ground. The Supreme Court provided its sacrosanct text defining attorney work product in Hickman V. Taylor 329 U.S. 495 (1947). Hickman held "written materials obtained or prepared by an Attorney with an eye toward litigation are protected as attorney work product. Work product also encompasses communications that contain the mental impressions of an attorney, though facts alone are not attorney work product.Air Force Inst of Tech Wright-Patterson AFB OH is the author of 'Expert Witness Discovery Versus the Work Product Doctrine : Choosing a Winner in Government Contract Litigation', published 1997 under ISBN 9781423580300 and ISBN 1423580303.