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Emergency Care Dynamics v. Superior Court2/4/1997
in preparing to testify, and the tribunal finds that disclosure is required in the interests of Justice.
As drafted, section 141(2)(b) would apply comprehensively to expert witnesses, non-expert witnesses, and the parties themselves. Each of those categories, however, warrants separate consideration; and we limit our Discussion to the utility of section 141(2)(b) as a standard to regulate disclosure of recorded material that an expert witness has considered. We conclude that such a standard would generate the costs, uncertainty, and managerial problems discussed above. Discovery disputes over expert witness files, presently rare in Arizona, would be invited. With each dispute, the trial court would be obliged to undertake a time-consuming inquiry to determine: (1) whether the expert had examined the documents for trial preparation or "for generally facilitating preparation of the case," RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS ยง 141 cmt. e (Proposed Final Draft No. 1 1996), and (2) if the former, whether disclosure would serve the interests of Justice.
We decline to impose this burden on the courts, this cost on the parties, or this uncertain standard on the law. We find the bright line of an either/or rule more workable for all concerned. Lawyers can adequately seek expert assistance in trial preparation and adequately maintain work-product protection for such consultations by choosing a different expert than their expert witness for a preparatory role. See Intermedics, 139 F.R.D. at 392-93. Though an either/or approach to testimonial and consulting experts will sometimes oblige parties to hire two experts instead of one, such costs, though potentially substantial, are likely cumulatively to be lesser than the systemic costs of innumerable discovery battles over expert witness files.
For the foregoing reasons, we conclude that the trial court properly rejected the Petitioners' work-product claim and permissibly declined to conduct an in camera inspection.
NOEL FIDEL, Presiding Judge
Concurring
WILLIAM F. GARBARINO, Judge
SARAH D. GRANT, Judge
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