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Emergency Care Dynamics v. Superior Court2/4/1997
FIDEL, Presiding Judge
The rule of work-product immunity bars adversary discovery of a lawyer's mental impressions, Conclusions, opinions, and legal theories concerning a pending or impending case. But does the rule immunize a lawyer's communications to an expert witness on a subject the expert will testify about at trial? And if the expert has been hired not only to testify, but also to help the lawyer prepare for trial, does this dual role immunize communications that would lack immunity if the expert were hired for testimony alone? These questions are presented in this special action. We hold that a lawyer forgoes work-product protection for communications with an expert witness concerning the subject of the expert's testimony even if the expert also plays a consulting role.
I.
The underlying lawsuit is an antitrust and breach-of-contract action, whose merits do not concern us here. Petitioners, the plaintiffs, hired Michael J. Williams, an "antitrust expert," for testimony and consultation. The Real Parties In Interest, preparing to depose Williams, served him with a subpoena duces tecum, commanding him to produce his entire case file. Petitioners moved to quash both this subpoena and another to Williams's custodian of records. Invoking work-product immunity, Petitioners' lawyers argued that Williams's file contained protected hypotheses, mental impressions, and litigation strategies that they had explored with Williams in his consulting role. The trial court denied Petitioners' motion and ordered them to produce the file; the court declined to first review the file in camera.
Petitioners seek relief by special action. We accept jurisdiction. "When a trial court orders disclosures that a party or witness believes to be protected by a privilege, appeal provides no remedy. Special action is the proper means to seek relief." Church of Jesus Christ of Latter-Day Saints v. Superior Court, 159 Ariz. 24, 25-26, 764 P.2d 759, 760-61 (App. 1988).
II.
If Petitioners had engaged Williams as a consulting, not testimonial, expert and chosen a different expert to testify at trial, Petitioners' lawyers could protect their communications with Williams under Rule 26(b)(4)(B), Arizona Rules of Civil Procedure, 16 Ariz. Rev. Stat. Ann. ("A.R.S.") (1987 & Supp. 1996) (relating to discovery from experts retained for trial preparation but not expected to testify). Cf. State ex rel. Corbin v. Ybarra, 161 Ariz. 188, 193, 777 P.2d 686, 691 (Ariz. 1989)(reports from experts are attorney work product when those experts will not be presented as witnesses at trial). What differentiates this case is that Williams was retained as both a testimonial and consulting expert. The question follows whether Petitioners' lawyers have sacrificed work-product protection that would have shielded their communications with a consulting expert by using their testimonial expert for that role.
To respond, we first examine Rules 26(b)(3) and 26(b)(4) of the Arizona Rules of Civil Procedure. The former constitutes Arizona's work-product rule. The latter governs discovery from testimonial and consulting experts.
Rule 26(b)(3) (Supp. 1996) provides in pertinent part:
Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case a
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