Republic of Ecuador v. Robert E. Hinchee
741 F.3d 1185
| 11th Cir. | 2013Background
- Republic seeks discovery from Dr. Hinchee under 28 U.S.C. § 1782 to aid Treaty arbitration in The Hague; Hinchee is Chevron’s testifying expert and resides in Florida.
- Chevron produced roughly 94,000 pages; 1,200 documents were withheld claiming work-product protection by Hinchee and Chevron.
- District court conducted an in camera review of 40 documents; 39 were non-privileged, and one was a draft expert report protected.
- The district court ordered production of 39 non-privileged documents and production of other listed documents unless valid privilege applied, with in camera review available for any remaining claims.
- Appeal centers on whether Rule 26(b)(3) work-product protection extends to a testifying expert’s notes and communications with non-attorneys, and how the 2010 amendments to Rule 26 affect Rule 26(a)(2)(B) disclosures.
- Court reviews district court’s interpretation of Rule 26 and its amendments de novo and affirms the district court’s discovery order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Rule 26(b)(3)(A) extend work-product protection to testifying experts? | Republic argues 26(b)(3) applies to testifying expert materials. | Chevron/Hinchee contend 26(b)(3)(A) protects such materials as for a representative of a party. | No; Rule 26(b)(3)(A) does not apply to testifying experts. |
| What is the impact of the 2010 amendments to Rule 26(a)(2) on disclosure of notes and non-attorney communications by testifying experts? | Republic argues amendments do not override discovery of these materials. | Chevron/Hinchee argue amendments narrow disclosures and protect attorney-focused material. | Amendments do not justify withholding notes/communications of testifying experts beyond attorney work-product. |
| Do Rules 26(b)(4)(B)-(C) protect drafts and attorney-expert communications while allowing discovery of non-attorney materials? | Republic seeks broad production of factual materials considered by the expert. | Chevron/Hinchee rely on 26(b)(4) to shield drafts and attorney-expert communications. | 26(b)(4)(B)-(C) protect drafts and attorney-expert communications but do not shield testifying experts’ notes or non-attorney communications; redactions for core attorney work-product may be allowed. |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (Supreme Court 1947) (origin of the attorney work-product doctrine)
- United States v. Nobles, 422 U.S. 225 (Supreme Court 1975) (investigator materials aided attorney; protection extended to agents)
- Elm Grove Coal Co. v. Director, O.W.C.P., 480 F.3d 278 (4th Cir. 2007) (draft reports and attorney-expert communications not always protected)
- In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370 (Fed. Cir. 2001) (attorney-expert communications and drafts under discovery rules)
- Reg’l Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006) (Rule 26(a)(2) disclosures and expert information scope)
- Republic of Ecuador v. For Issuance of a Subpoena Under 28 U.S.C. § 1782(a), 735 F.3d 1179 (10th Cir. 2013) (work-product protection not extended to testifying expert materials)
- Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998) (forum non conveniens and related jurisdictional considerations)
- United States v. United Kingdom, 238 F.3d 1312 (11th Cir. 2001) (interpretation of discovery rules; deference to district court rulings)
- United States v. Nobles, 422 U.S. 225 (Supreme Court 1975) (investigative aids and attorney work-product protection)