Expert File Material May Have To Be Disclosed if Note Properly Protected

A New York mid-level appellate court recently ordered a law firm to turn over its expert’s reports and emails and letters with its experts. [1] 

First, some background.  The rules for how to litigate in New York state courts is set out in the Civil Practice Laws and Rules (“CPLR”).   CPLR 3101(a) states that there shall be “full disclosure” of all matter material and necessary in the prosecution or defense of an action.  There are certain narrow exceptions.  For example, CPLR 3101(d)(2) says that material “prepared in anticipation of litigation or trial” by a party, attorney of “consultant” for a party is protected – unless the party seeking disclosure can show that they have “substantial need” of the materials and is “unable without “undo hardship” to obtain the substantial equivalent of the materials by other means.

The home of Eric and Janice Jerabek was damaged by fire December 11, 2009.  Their insurer hired Gordon Ivory and Gary Hauf to investigate.  An attorney was hired two months after the fire to investigate and pursue subrogation.  The matter was put into suit against Expert Chimney Services and Greenhomes America in February 2011.  The attorneys for Greenhomes demanded that the subrogating carrier turn over its expert reports, letters and emails (the court decision is unclear as to who the experts were communicating with in the letters and emails).  The court noted that it was the burden of the subrogating carrier to convince the court that the material was prepared exclusively for litigation.   This burden could not be met by an attorney affidavit, but must be met by an affidavit from the experts themselves.  In the Jerabek case, there was not sufficient showing that the emails and reports were prepared solely for subrogation/litigation purposes.   Material prepared by fire investigators that is used not only for subrogation but also “used to evaluate [the insureds’] claim” must be turned over.  The court noted that it is the “ordinary course of business practice when confronted with a fire loss” to retain a fire investigator, and such investigations are routine and part of the claims process –not “solely” for the purpose of supporting future subrogation litigation.

Thus, “mixed use” expert reports (i.e., written not only to support litigation but also as part of the claims process) are not protected and must be disclosed.  If possible, the expert should not prepare a report immediately after the fire; the expert can give an oral report and write a report to counsel later – after the decision has been made to pursue subrogation.  However, an expert’s notes prepared at the scene might be discoverable since the expert presumably has not yet determined if litigation is likely at the time he jots his notes.  Be careful what you put in your notes!

Bottom Line:  My advice on expert reports and communications:

1. The expert should mark his/her report “DRAFT” and “CONFIDENTIAL – FOR LITIGATION PURPOSES ONLY.”
2. The expert report should be addressed to the attorney, not to the insurance carrier.
3. A motion to compel production of expert material should be resisted using an affidavit from the expert, not just from the attorney.
4. Be careful what you put in an email.  Where possible, discuss the matter over the phone or in person with the attorney or claims handler, rather than sending an email.

[1] Madison Mutual Insurance Co. as subrogee of Jerabek v. Expert Chimney Services and Greenhomes America