Sixth Circuit Finds Rule 26(a)(2) Requires Disclosure Of All Information Provided To Testifying Experts

In Regional Airport Authority v. LFG, LLC, No. 05-5754, 2006 WL 2368323 (6th Cir. Aug. 17, 2006), the Sixth Circuit became the second court of appeals to hold that the 1993 amendments to Fed. R. Civ. P. 26(a)(2) created a bright-line rule mandating disclosure of all information provided to testifying experts, even if such materials included attorney work product.

Since 1993, courts have split over the issue of whether work product that attorneys provide to their retained testifying experts must be disclosed. Beginning with Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995), some district courts have held that work product shared with a testifying expert does not necessarily need to be produced because Rule 26(b)(3) and (4) retain some protections for work product.

However, in Regional Airport Authority the Sixth Circuit overruled the Haworth rule and found that amended Rule 26(a)(2) trumps Rule 26(b)(3) and (4).