By Steven Babitsky, Esq.

The US District Court D. New Mexico dealt with an attempt to force the production of the expert witness’s notes in discovery.

The court, citing FRCP 26(b)(4)(C) found these notes to be protected from discovery.

The court stated:

Rule 26(b)(4)(C) protects “communications between a party’s attorney and any witness required to provide a report [ ], regardless of the form of the communications[.]” Despite the protection afforded to attorney-expert communications, Rule 26 enumerates three instances where material must be disclosed: when the communications (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed. Fed. R. Civ. P. 26(b)(4)(C)(i)-(iii). These exceptions, and Rule 26(b)(4) more broadly, are intended to “limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.” Republic of Ecuador, 735 F.3d at 1187. Rule 26 should therefore not be construed to “impede discovery about the opinions to be offered by the expert or the development, function, or basis of those opinions.” Id.

Here, Defendants contend Mr. Torres’ notes “identify facts, data, or assumptions” that Plaintiffs’ attorney provided and “that the expert considered in forming the opinions to be expressed” (Doc. 119 at 7-8). As a result, Defendants assert these notes constitute “exceptions” to the protection of Rule 26(b)(4)(C) and are therefore subject to production. Id. The Court will address each of the two documents, consisting of Mr. Torres’ notes, which Plaintiffs have asserted are protected from disclosure.

Simply put, allowing Defendants to examine Mr. Torres’ notes, which appear to be answers to questions posed by Plaintiffs’ attorney, would risk detailing the “inner workings of [the] attorney’s mind,” or Plaintiffs’ attorney’s strategy related to the case. Republic of Ecuador, 735 F.3d at 1187. Working from Mr. Torres’ enumerated responses, Defendants could easily ascertain what Plaintiffs’ attorney’s questions were and their importance to Plaintiffs’ underlying litigation strategy. As a result, the Court finds Mr. Torres’ notes are protected by Rule 26(b)(4)(C) and were properly withheld from disclosure. In addition, none of the enumerated exceptions in Rule 26(b)(4)(C)(i)-(iii) apply to Mr. Torres notes. As such, Defendants Sandoval County Board of Commissioners, Rudy Fields, and Douglas Wood’s Motion Compel Production of Non-Privileged Notes by Expert Witness, (Doc. 119), is DENIED.