Boring v. Keller

97 F.R.D. 404, 35 Fed. R. Serv. 2d 1596, 12 Fed. R. Serv. 1213, 1983 U.S. Dist. LEXIS 19194
CourtDistrict Court, D. Colorado
DecidedFebruary 16, 1983
DocketNo. 81-K-1254
StatusPublished
Cited by35 cases

This text of 97 F.R.D. 404 (Boring v. Keller) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boring v. Keller, 97 F.R.D. 404, 35 Fed. R. Serv. 2d 1596, 12 Fed. R. Serv. 1213, 1983 U.S. Dist. LEXIS 19194 (D. Colo. 1983).

Opinion

ORDER

KANE, District Judge.

This is a medical malpractice action where the plaintiff claims that the defendant performed a total abdominal hysterectomy upon her without her informed consent.

Counsel for plaintiff deposed two of defendant’s expert witnesses on July 26 and August 2, 1982. During the course of the first deposition with Dr. Richards, plaintiff’s attorney asked the deponent to identify each document which he had inspected to prepare for the deposition and the rendering of his expert opinion. Counsel for the defendant suggested that the documents be assembled and marked as a single exhibit in order to save time. Plaintiff’s counsel agreed to the procedure, and the exhibit was marked and attached to the deposition.

Shortly thereafter, defendant’s attorney, Peter Pryor, telephoned plaintiff’s attorney and informed him that an unedited version of plaintiff’s deposition summary had inadvertently been included with the documents supplied to the expert witnesses. This unedited summary contained Pryor’s impressions and evaluations of Mrs. Boring’s appearance and demeanor as a witness, in addition to a summary of her substantive testimony. Also, it was discovered that the same document had been provided to and reviewed by Dr. Hutto, the defendant’s second expert witness.

[405]*405In addition to Pryor’s description and impressions of the parties, both expert witnesses were provided with an “expert witness letter.” The letter contained general suggestions to experts for their deposition testimony, as well as counsel’s impressions, thoughts and opinions regarding issues which are generally encountered in medical malpractice cases. Apparently, the letter did not discuss any specifics of the present action, nor did it suggest that the expert testify to any fact or set of facts.

Pryor requested permission to withdraw that portion of the exhibit which included his mental impressions on the ground that it was work product, and as such, was privileged. Plaintiff’s counsel agreed to allow withdrawal of the exhibit, but refused to acknowledge that it was privileged. Defendant’s attorney refused to allow the plaintiff to inspect a copy of the document, and the issue was submitted to the magistrate for determination.

On January 4,1983, the magistrate granted plaintiff’s Motion to Compel Production of Documents Pursuant to Rules 26 and 37. The defendant was ordered to produce the summary of the deposition and the letter which had been provided to the defendant’s expert witnesses. The magistrate noted that, “[ujnder the circumstances here presented, it is concluded that the documents in question will most probably have an influence on the evidence presented by testimony and, therefore, opportunity must be afforded to the plaintiff to evaluate the possible effect of this material and depose or cross-examine accordingly.”

It is this order which the defendant moves the court to reconsider.

Generally, defendant alleges that the magistrate’s order was erroneous and contrary to established law. In these circumstances, and especially in view of the sanctity of opinion work product which is recognized in F.R.Civ.P. 26(b)(3), he asserts that the Motion to Compel Discovery should be denied.

F.R.Civ.P. 26(b)(3) codifies the work product doctrine which was recognized in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and provides that “the Court shall protect against disclosure of the mental impressions, conclusions, opinion, or legal theories of an attorney....” This is the definition of “opinion work product” as adopted by F.R.Civ.P. 26. Defendant claims that while it is not afforded absolute protection under Rule 26, it is discoverable only in unique and unusual circumstances, and upon a showing of compelling need. In re Murphy, 560 F.2d 326 (8th Cir.1977). Opinion work product is therefore distinguished from ordinary work product, in which discovery is allowed upon a showing of substantial need and the inability to procure similar information from other sources.

Defendant also claims that disclosure of opinion work product materials to a third party does not constitute a waiver of the work product privilege. U.S. v. A.T. & T. Co., 642 F.2d 1285, 1299 (D.C.Cir.1980). Therefore, defendant asserts that where the privilege is not waived, discovery of opinion work product is permissible only upon a showing of extreme and unusual circumstances. However, in support of this proposition, defendant relies upon a decision in which the witness was not an expert witness. Al-Rowaishan Establishment Universal Trading & Agencies, Ltd. v. Beatrice Foods Co., 92 F.R.D. 779 (S.D.N.Y.1982). Nevertheless, defendant argues that the magistrate failed to distinguish between the two work product classifications and, as a result, he applied the incorrect standard for determining whether the materials were discoverable.

Finally, defendant claims that the documents in question reveal no exigent or unique circumstances which favor discovery of the documents. The edited deposition summary has been provided to plaintiff’s counsel. Therefore, plaintiff will be able to challenge the expert witnesses’ understanding of Mrs. Boring’s testimony. Since plaintiff has not suggested that the documents were supplied to the experts for any improper or illegitimate purpose, discovery is not necessary.

The defendant argues that the magistrate erred in concluding that “the docu-[406]*406merits in question will most probably have an influence on the evidence presented by testimony” of the defendant’s experts. Based on the testimony of the expert witnesses, there is no factual basis for concluding that counsel’s comments about the plaintiff had any effect on the witnesses’ opinions or testimony. Also, the expert witness letter did not contain any instructions to the witnesses on how or about what to testify, nor did it discuss any aspect of the present action. Accordingly, it is not subject to discovery or production under Rule 612.

Defendant claims that the magistrate failed to consider the actual effect which the disputed documents had on the witnesses’ testimony, and he erroneously concluded that the documents had an influence on the testimony and were discoverable.

Should the Motion to Reconsider be denied, defendant requests restrictive orders to prevent the dissemination of the letter and to minimize the harm done to counsel by virtue of the production.

Generally, plaintiff contends that all facts known to an expert which are relevant to his opinion and which were known to him at the time he was forming his opinion are discoverable.

Rule 26(b)(4) provides that a party is entitled to discover facts made known to an adverse expert because a party should be allowed to prepare for cross-examination and impeachment of any prospective witness. Here, plaintiff seeks discovery of critical information which was shared with defendant’s expert witnesses, but was not shared with the plaintiff. Plaintiff asserts that this sharing of defense counsel’s mental impressions and characterizations of a party to the case will affect the credibility of the parties in attempting to resolve whether Mrs. Boring gave her informed consent to the medical procedure.

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Cite This Page — Counsel Stack

Bluebook (online)
97 F.R.D. 404, 35 Fed. R. Serv. 2d 1596, 12 Fed. R. Serv. 1213, 1983 U.S. Dist. LEXIS 19194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boring-v-keller-cod-1983.