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Lawyers Have To Insist On The Discovery Immunity Afforded To Opinion Work Product

It is obligation of an attorney to insist on the absolute immunity

A lawyer cannot represent his client equally unless such matters remain private. Work product immunity offers a privacy zone that allows a lawyer to discuss and examine any aspect of his case without fear of interference by an opponent’s counsel. Allowing an intrusion into this sacred zone of secrecy offers an unfair advantage to the opposite side.

Work product doctrine immunity is particularly important when dealing with expert witnesses. Most cases require a thorough consultation of experts during the pre-suit investigation, the planning of the case and the discovery of the case. If the trial counsel cannot consult with experts without interference from the opposing party, the object of the adversarial system shall be thwarted. Therefore, the discovery protection for opinion work product is absolute.

The primary decision for the work product doctrine is Hickman v. Taylor. In Hickman, the U.S. Supreme Court argued that if an attorney’s statements, memoranda, correspondence, briefs, mental observations, and personal opinions were available to opposing counsel on mere demand, much of what is now written would remain unwritten, and an attorney’s thoughts, heretofore inviolate, would not be his own.

Despite the essential policy behind the protection of opinion work product, opposing counsel also attempt to bypass the protection of work product by claiming that any mental experiences or techniques exchanged with an expert are not protected from disclosure. This misapprehension of the law is a point that is at the core of the adversarial method. This statement should be firmly opposed.


Expert witness role

Unless otherwise directed by the judicial authority or decided by the parties, an expert witness shall, at the request of the opposing party, produce to all other parties all documents collected, produced and/or relied on by the expert in connection with his or her opinions in the case.

Unless otherwise ordered by the judicial authority upon request, a party may take the deposition of any expert disclosed. Nothing shall impede the right of any party to exercise the privileges of that party, in compliance with the rules of procedure, to make representations or to request the production of any materials, to the degree otherwise observable in connection with the deposition of any expert witness, or to anything contained therein.

Read literally, 13-4(b)(3) of Ullman v. State which include the creation of notes by an expert on conferences with a lawyer, but which do not include the transmission of information that formed the basis for the expert’s opinion on the case. Such an outcome would negate the well-established absolute protection afforded by Practice Book 13-3(a) and Decades of Common Law to opinion labor goods. It would also make no sense to provide different outcomes depending on whether the work product communicated to the conversation expert has been memorized in the form of notes.

The Connecticut appellate court has not determined whether the immunity for opinion work product has been repealed by the revisions to Practice Book 13-4. The right understanding of the rule is that the opinion work product which has been revealed to an expert is prtected from disclosure.

Tension occurs when, during the discovery, the court orders the creation of details that the lawyer considers in good faith to be a work product covered. The obligation of zealous advocacy and confidentiality of the client may require the lawyer to exhaust all appeals before releasing the opinion work product to the opponent.

In the form of the relevant case, the Supreme Court of Connecticut should take the opportunity to explain that the discovery protection for opinion work product is indeed absolute. Alternatively, the rules of the Practice Book should be amended to state that 13-4(b) (requiring production of all materials received, produced and/or relied on by an expert in accordance with his or her opinions in the case) does not provide absolute protection to the opinion work product encapsulated in 13-3. In addition, there should be an option for an immediate appeal of discovery orders relating to work product immunity (and client privilege) since, if such matters are wrongly determined, the damage cannot be remedied. If the absolute security afforded to such a core work product is undermined, the adversarial mechanism will be weakened, and the interests of all clients will not be well served.