New Jersey Appellate Division Rules That Transcripts of a Party's Expert Witness in Opposing Counsel's Hands are Discoverable and Are Not Protected Under the Work Product Privilege

04.10.14

In a recent NJ Appellate Division decision, Dalton v. Crawley et. al., A-4033-12 T3 (App. Div. 4/8/14), the plaintiff sought leave to file an interlocutory appeal from two discovery orders entered by the Trial Court. The first order required the plaintiff to identify transcripts of defendant’s experts in her possession, but not information she intended to use at trial. The second order required that both the plaintiff and defendants identify “any prior deposition transcripts of … experts that they plan to use at the time of trial.”
 
It was the plaintiff’s position that the transcripts would be used solely to cross examine those defense experts in the pending case and were therefore attorney work product which was shielded by discovery pursuant to Rule 4:10-2(c) and that production of the transcripts would diminish the effectiveness of cross examination for impeachment purposes.
 
The defendant’s position was that the transcripts were not attorney work product because they were not prepared in anticipation of litigation or for trial and because they did not contain the mental impressions or legal theories of an attorney. 
 
With respect to the first discovery order, the Court noted that the fundamental test of applicability of the work-product privilege is “whether the materials sought to be discovered were prepared in anticipation of litigation rather than in the ordinary course of the business, not how an attorney intends to utilize the materials” (see comment 4.1 on R. 4:10-2). The Court further recognized that the initial discovery order made a distinction between the transcripts in the plaintiff’s possession and the transcripts she intended to utilize at trial. The Appellate Court ultimately determined that the transcripts themselves did not include the mental impressions, conclusions or legal theories of an attorney and were therefore discoverable.
 
With respect to the second discovery order however, the Appellate Division noted that it did not merely require the parties to produce transcripts in their possession, but rather it compelled the parties to identify which deposition transcripts they planned to use at the time of trial. As such, the Court determined that the second order required in effect that the parties disclose the mental impressions and trial strategies that their attorneys had developed in addition to determining which transcript segments they would utilize for cross examination. While the Court recognized that in rare instances public policy considerations may dictate that the privilege can be pierced, in this case the defendants had not demonstrated a compelling policy consideration to have the plaintiff disclose mental impressions of her attorney in determining which portions of the transcripts to use on cross examination.
 
Accordingly, the Appellate Division affirmed the second order only to the extent that it imposed on all parties the obligation to disclose transcripts of adverse experts that the parties had in their possession. The Court reversed the remaining provisions of the second order pertaining to the discovery of which transcripts they intended to utilize as well as those segments of the transcripts that the attorney intended to use on cross examination.
 
ANALYSIS: The holding that parties may obtain depositions of their expert witnesses in the hands of their adversaries, has broad applicability to all types of cases. It is anticipated that attorneys will now routinely serve document production requests for deposition transcripts but they should anticipate mirror discovery requests in response.
 
For more information please contact Jane Kelsey at jkelsey@wglaw.com or 973.854.1078

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