The Rhode Island Supreme Court recently issued a decision that significantly narrows the scope of materials exchanged during discovery relative to testifying experts. In Cashman Equipment Corporation, Inc. v. Cardi Corporation, Inc., et al. No. 2014-284-M.P., the court held that all materials considered by a testifying expert are protected by discovery. In doing so, the court held that Rule 26(b)(4)(A) of the Rhode Island Superior Court Rules of Civil Procedure does not provide for the disclosure of such materials. The court also noted that the permitted avenues of discovery regarding testifying experts are interrogatories and depositions.
The underlying facts of this case concern work performed during the construction of the Sakonnet River Bridge. One of the issues was whether Cardi Corporation provided defective cofferdams for the project for which Cashman Equipment Corporation had to perform additional work. Cofferdams are temporary watertight enclosures that are pumped dry to expose the bottom of a body of water so construction can occur.
Through discovery, Cashman Equipment Company sought the computer models and draft reports that had been considered by Cardi Corporation’s testifying engineering expert to determine “certain stress and loads that are going to be placed on certain points on this cofferdam,” including models “that [the expert] created which [he] may not have relied on but certainly would’ve considered.” Cardi Corporation refused to produce such materials and argued that Rule 26(b)(4)(A) of the Superior Court Rules of Civil Procedure does not allow discovery of materials “considered by” an expert in forming his or her expert opinion. The hearing justice concluded that he did not have the authority to compel production of the material. The Rhode Island Supreme Court affirmed, after considering interpretations of the corresponding federal rule. The court stated that the state rule is “clear and unambiguous,” is confined to discovery through interrogatories or deposition, and does not provide for the disclosure of documents.
The Cashman decision appears to be inconsistent with the court’s decision in Crowe Countryside Realty Assocs. Co., LLC v. Novare Engineers, Inc., 891 A.2d 838 (R.I. 2006), where the court held that core attorney work product (such as counsel’s thoughts or impressions) was protected from discovery, while factual and ordinary work product, such as data provided to an expert, was discoverable. In light of the Cashman decision, holding that all materials provided to an expert are protected from discovery, counsel no longer has to make a determination as to what constitutes core attorney work product versus ordinary work product.
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Photo Credit: The Expert Institute