State Bar of Arizona Ethics Opinions

88-01: Fairness to Opposing Counsel; Misconduct
1/1988

Ethical propriety of lawyer having ex parte contact with opposing counsels designated expert witness.



FACTS

In the course of civil litigation, an attorney has used interrogatories to learn the identity of the opponent's expert witnesses and the substance of the expert witnesses' expected testimony at trial. The attorney now wants to talk with the experts informally without notifying opposing counsel.

 

QUESTION

May a lawyer ethically conduct an ex parte interview with an expert witness designated by opposing counsel for use at trial?

 

ETHICAL RULES INVOLVED

ER 3.4. Fairness to Opposing Party and Counsel.

A lawyer shall not:

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(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

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ER 8.4. Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another:

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(d) engage in conduct that is prejudicial to the administration of justice;

APPLICABLE PROCEDURAL RULES

16 A.R.S. Rules of Civil Procedure

Rule 26. General provisions concerning discovery

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(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

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(4) Trial preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b) (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticabl for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

OPINION

In the final analysis, whether a lawyer may ethically conduct an ex parte interview with an expert witness designated by opposing counsel for use at trial turns upon the interpretation one places on Rule 26(b)(4) of the Arizona Rules of Civil Procedure. Interpretation of the rule involves questions of law and normally this committee lacks jurisdiction to pass on such issues. However, the committee does have jurisdiction to deal with legal issues when, as in this case, it is asked by the Board of Governors of the State Bar of Arizona to do so.

Our analysis necessarily begins with the Rules of Professional Conduct applicable to the issue presented. ER 3.4(c) imposes an ethical obligation on all Arizona attorneys to obey the Arizona and Federal Rules of Civil Procedure. (“A lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.") ER 8.4(a) provides that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct. It is also professional misconduct to "engage in conduct that is prejudicial to the administration of justice." ER 8.4(d).

While a knowing violation of the Arizona or Federal Rules of Civil Procedure would be unethical, the threshold question is whether such rules prohibit ex parte contact with an opponent's expert witness under the circumstances described.

On its face, Rule 26(b) (4) appears to be very specific:

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1. Federal Rule 26(b) (4) is identical to the Arizona rule. In fact, Arizona adopted its rules of civil procedure from the Federal Rules of Civil Procedure. State Reviser's Note to Arizona Rule of Civil Procedure 1, Volume 16, Arizona Revised Statutes Annotated at 2.    The drafters of the 1970 Amendment to Arizona Rule 26(b) (4) emphasized their “strong desire” to maintain substantial uniformity between the state and federal rules. State Bar Committee note to 1970 Amendment to Rule 26(b), Volume 16, Arizona Revised Statutes Annotated at 217. Arizona courts give great weight to the federal courts' interpretation of the rules of civil procedure. Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971).

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26(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

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(4) Trial preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b) (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this ruler concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness.at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(Emphasis added.)

In Ager v. Jane C. Stormont Hospital & Training School for Nurses, 622 F.2d 496 (10th Cir. 1980), the Court of Appeals for the Tenth Circuit explained the application of Rule 26 to various categories of expert witnesses.

Fed. Rules Civ. Proc., rule 26, 28 U.S.C.A., governs the scope of discovery concerning experts or consultants. Subdivision (b) (4) separates these experts into four categories, applying different discovery limitations to each:

(1) Experts a party expects to use at trial. The opponent may learn by interrogatories the names of these trial witnesses and the substance of their testimony but further discovery concerning them can be had only on motion and court order. 

(2) Experts retained or specially employed in anticipation of litigation or preparation for trial but not expected to be used at trial. Except as provided in rule 35 for an examining physician, the facts and opinions of experts in this category can be discovered only on a showing of exceptional circumstances.

(3) Experts informally consulted in preparation for trial but not retained. No discovery may be had of the names or views of experts in this category.

(4) Experts whose information was not acquired in preparation for trial. This class, which includes both regular employees of a party not specially employed on the case and also experts who were actors or viewers of the occurrences that gave rise to suit, is not included within Rule 26(b)(4) at all and-facts and opinions they have are freely discoverable as with any ordinary witness. [Footnotes omitted.] Wright & Miller, Federal Practice and procedure: Civil § 2029.

Id. at 500-503 ³ (Emphasis added.)

An examination of Arizona Rule 26(b)(4) discloses that, just as under the federal rules, attorneys may only obtain information from an opposing party's experts through specific and distinct methods, depending upon the type of expert involved. Experts who will testify, but whose knowledge was not acquired and opinions were not developed in anticipation of litigation or for trial, are not subject to Rule 26(b) (4); therefore, the facts known and the opinions held by them are "freely discoverable as with any ordinary witness." Of course, when the knowledge or opinion of these experts is subject to a privilege, a party may obtain discovery only if the privilege has been waived. Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E. 2d 952 (Ill. App. 1986), appeal denied, 505 N.E. 2d 361, cert. denied, 107 S. Ct. 3232; Karsten v. McCray, 157 Ill. App. 3d 1, 509 N.E. 2d 1376 (Ill. App. 1987); Bain v. Superior Court, 148 Ariz. 331, 714 P.2d 824 (1986); cf. Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857 (1985); Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126 (D.D.C. 1983). But also see Weaver v. Mann, 90 F.R.D. 443, 445 (D.N.D. 1981), in which the court held that even treating physicians are subject to Rule 26(b) (4).

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2. This opinion deals only with expert witnesses who will testify at trial. Under Rule 26(b) (4), experts who are not expected to be called as witnesses at trial are not subject to discovery except "as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Also see State of Arizona, ex rel. Charles L. Miller v. Superior Court of the State of Arizona, _____Ariz._____, 742 P.2d 864 (App.1987).

3. Ager has been cited with approval by the Arizona Supreme Court. Granger vs Wisner, 134 Ariz. 377, 381, 656 P.2d 1238, 1242 (1982).

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In the case of experts falling within the scope of Rule 26(b) (4) (that is, those experts whose knowledge was acquired or opinions were developed in anticipation of litigation or for trial), discovery may be had only through interrogatories and, beyond that, "on motion and court order." In short, by its terms Rule 26(b) (4) appears to limit discovery to the means specifically authorized and, by implication, to prohibit any other form of discovery not agreed to by the parties or authorized by the court.

The State Bar Committee Note to Rule 26 also supports the conclusion that, in the case of an expert who is subject to the rule and is going to testify at trial, a party who wishes to obtain information other than that permitted through interrogatories must first file an appropriate motion and may then take the expert's deposition only after permission has been obtained from the court. Rule 26(b) (4) gives the court the right to impose "restrictions as to scope” when discovery is sought from an expert witness who falls within the rule. The Committee Note provides in relevant part:

If the expert is to appear at trial, then a party may through interrogatory discover the name, subject matter, and substance of the scope of the expert's testimony. If he desires to go further and take a deposition, he may do so "upon motion.” It is this requirement of "motion"_which slightly modifies the existing Arizona practice, where no motion is required.

 

(Emphasis supplied.) 

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4. Ager, supra. Also see Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 503 (1970).

5. As a matter of practice, most Arizona attorneys waive the motion requirement and allow the taking of the expert's deposition.

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In short, Rule 26 authorizes only two mechanisms for obtaining information from an opposing party's testifying expert witness when the witness' knowledge has been acquired or opinions have been developed in anticipation of litigation. First, interrogatories may be sent to the opposing party seeking certain basic information relating to the expert. Second, “if [a party] desires to go further and take a deposition, he may do so ‘upon motion’" and subject to such "restrictions as to scope" as the court may deem appropriate. Neither the express provisions of Rule 26 nor the Committee's Note authorizes ex parte contact with an opposing party's expert witness outside of the discovery procedures prescribed by the rule. To read Rule 26 so as to permit ex parte contacts with a testifying expert witness to whom the rule is applicable would emasculate the rule; it would allow an adverse party to effectively circumvent the motion requirement and thereby deprive the other party of the right to request that a court impose "restrictions as to scope." Furthermore, such an interpretation would deprive the court of the opportunity to impose such restrictions.

The committee’s research reveals that every state and federal court that has considered the issue has condemned efforts to circumvent Rule 26. Jurisdictions differ only in their selection of an appropriate remedy. However, all agree that it is improper to disregard Rule 26 and informally contact an opposing party's designated expert witness whose facts were acquired or opinions developed in anticipation of litigation or for trial.

The leading case on this issue is Campbell Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980). The dispute in Campbell Industries involved the condition and value of a repaired commercial fishing boat. The plaintiff retained an expert to inspect the boat and prepare an inspection report. After reviewing the expert's report, the plaintiff decided to use the expert as a witness at trial. The plaintiff listed the expert on its formal witness list which was submitted to the court and included in the pretrial conference order.

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6. See also American Steel Products Corp. v. Penn. Cent. Corp., 110 F.R.D. 151, 152 (S.D.N.Y. 1986).

7. As one author notes, "Rule 26(b)(4) provides the exclusive means of discovering facts known and opinions held by experts if the facts or opinions were acquired or developed in anticipation of litigation," Graham, Discovery of Experts Under Rule 26(b) (4) of the Federal Rules of Civil procedure: Part One An Analytical Study, 1976 Univ. Ill. Law Forum 895, 916 (1976).

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As the case moved toward trial, the defendant contacted the plaintiff's witness ex parte on several occasions. On the plaintiff's motion, the trial court issued an order precluding any testimony at trial by that expert because of the defendant's "flagrant violation" of Rule 26(b)(4)'s provisions governing the methods for obtaining discovery from expert witnesses. 619 F.2d at 26.

The Ninth Circuit Court of Appeals upheld the sanction imposed by the trial court. There were other experts available to the defendant, so the preclusion of the expert's testimony did not unduly prejudice the defendant's case. The Ninth Circuit concluded:

We cannot say that the district court's ruling, which was carefully fashioned to deny Gemini the fruits of its misconduct yet not interfere with Gemini's right to produce other relevant expert testimony, constituted an abuse of discretion. Courts need not tolerate flagrant abuses of the discovery process.

Campbell, 619 F.2d at 27 (emphasis supplied).

The Arizona Supreme court cited Campbell Industries with approval in Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982). In Granger, the plaintiff sued a plastic surgeon when an operation which he had performed resulted in severe permanent scarring on her face. Plaintiff's attorney contacted an expect to consult and evaluate the medical records. The expert concluded that there had been no malpractice. The defendant learned of the consultation through some means not disclosed by the record.

Several months before trial, defense counsel contacted the expert and asked whether he would be willing to testify on behalf of the defendant doctor. The expert agreed to do so. The defendant then listed the expert as an expert witness in the pretrial stipulation. The plaintiff made no objection at that time. In fact, the plaintiff did not raise an objection to the use of the expert until the third day of trial, the day the expert was scheduled to testify. The plaintiff then asked the court to preclude any testimony by the expert.

The basis of the objection was two-fold. The plaintiff argued that the expert had been an agent of the plaintiff's attorney so that his proposed testimony was protected by the attorney-client privilege. That objection is not relevant to the issue which is the subject of this opinion. In her second objection, plaintiff contended that allowing the expert to testify would violate the purpose behind Arizona Rule of Civil Procedure 26(b) (4) (B) (which deals with consulting experts, not testifying experts). The trial court denied the plaintiff's motion and allowed the expert to testify in the defendant's case in chief.

On appeal, the Arizona Supreme Court affirmed the trial court's ruling. Writing for the court, Justice Feldman observed that the advisory committee notes concerning the 1970 Amendments to Rule 26(b) (4) indicate that the rule relating to consultants (that is, non-testifying experts) was largely developed around the doctrine of unfairness.

Subsection (B) was designed to protect against the danger that one party will use another party's consulting expert to prepare his or her own case. Thus, discovery of a non-witness expert is limited to "exceptional circumstances." The rule has been interpreted to prevent even the discovery of the identity of the non-testimonial expert.

Granger, 134 Ariz. at 381, 656 P.2d at 1242.

The Supreme Court noted that Rule 26(b) (4) (B) does not specifically address the admissibility at trial of testimony by a consulting expert who was contacted in violation of Rule 26. However, the court pointed out that trial courts do have a wide discretion concerning discovery and the ability to impose sanctions for violation of the discovery rules.

As noted, Granger v. Wisner did not deal with a testifying expert witness; the opinion dealt with a consulting expert who had not been listed as a testifying witness. After citing Campbell Industries, supra, with approval, the court concluded that, under the circumstances presented in Granger, there was no evidence of any improper conduct by counsel and that, in any event, the objection to the witness' testimony came too late.

In Granger v. Wisner, the record did not disclose how counsel for the defendant learned of the earlier consultation between the expert and plaintiff's counsel. The only evidence was that "[s]everal months prior to trial, defense counsel contacted Dr. Burkhardt and inquired whether he would be willing to testify on behalf of Dr. Wisner. Dr. Burkhardt agreed to do so." Granger, 134 Ariz. at 379, 656 P.2d at 1240. The witness was then listed by defendant as an expert and was later called to testify. Presumably it was for that reason that our Supreme Court concluded that "[u]nlike the situation in Campbell Industries, supra, however, the record in this case does not establish that the contact with the non-testimonial expert was the result of improper conduct on the part of the defendant or his counsel." 134 Ariz at 381, 656 p.2d at 1242 (emphasis supplied.) The court's statement implicitly suggests that the court agreed that "the situation in Campbell Industries" did involve a violation of Rule 26(b) (4): This conclusion is reinforced by the following language:

[W]e assume that in the case of a flagrant violation of the discovery process, in order to avoid circumventing the purpose of the Rules, a proper sanction could be the exclusion at trial of the "poisoned" fruits of the violation even though no rule expressly provides for such a sanction. Campbell Industries v. M/V Gemini, supra (order upheld excluding testimony of expert who had been contacted ex parte by adversary's counsel in violation of Rule 26(b) (4).

Id. This statement by the court suggests that the court agreed with the holding in Campbell Industries and, under similar circumstances, would reach a similar conclusion with respect to the propriety of an ex parte contact by adversary counsel in violation of Rule 26(b)(4).

Moreover, the Granger court was faced with a situation in which the request that the expert witness testify had been known to the objecting party's counsel for over eight months. Despite that fact, the party objecting to the request waited until the third day of trial to raise any objection to the expert's testimony. At that point, the opposing party had no other expert witnesses available to testify:

Given the late presentation of the objection, the lack of impropriety by the defense and the restriction imposed by the court to obviate or minimize the danger of prejudice to the plaintiff, we believe the trial court's ruling was eminently proper and was the best way to handle the problem under the circumstances. We find, therefore, that the trial court did not abuse its discretion in allowing the witness to testify. The judgment is affirmed.

Granger, 134 Ariz. at 382, 656 P.2d at 1243.

In short, under the unique circumstances presented in Granger, the court did not feel obligated to impose sanctions. Nothing in Granger supports ex parte interviews with an opponent's designated expert witness, especially when the witness is going to testify, as in Campbell Industries.

Other federal courts that have specifically considered the propriety of ex parte contacts with an opponent's Rule 26 expert have uniformly disapproved of the circumvention of the rule, and have imposed sanctions of varying severity. For example, in Healy v. Counts, 100 F.R.D. 493 (D. Colo. 1984), the defendant's attorney inadvertently contacted an expert physician witness who had been paid by the plaintiff to review the medical records. Defense counsel gave a set of records to the expert, who realized, after glancing at the records, that he had already reviewed the set for the plaintiff's attorney. The expert informed defense counsel of his prior retention, and then related his expert opinion that there had been no malpractice by the defendant doctor. The magistrate denied the plaintiff's motion to exclude the expert. The District Court reversed the magistrate's order and excluded the expert.

The Healy court concluded that Rule 26 defined the permissible methods for obtaining discovery from an opponent's expert. Although the defendant argued that the expert had been discovered by happenstance, the court concluded that there was no reason to treat an expert "discovered by happenstance, any differently than an expert whose identity was learned through formal discovery. The court reasoned that the plaintiff would be prejudiced if he sought to attack the expert's qualifications or credentials, since the defendant could always rehabilitate the expert by showing the plaintiff's counsel had consulted him earlier. Other types of attempted impeachment might also unintentionally open the door to mention of the prior consultation. The court was concerned that allowing informal discovery would lessen the number of candid opinions available as well as the number of consultants willing to discuss potential claims. Finally, the court was unwilling to permit a happenstance rule to replace the formal procedures governing discovery of an expert's opinion. Id. at 497.

Intentional circumvention of Rule 26(b) (4) (B) resulted in the exclusion of the testimony of an expert in Durflinger v. Artiles, 727 F.2d 888 (10th Cir. 1984). In that case, plaintiffs had retained a psychiatrist as a consultant in a wrongful death action. The plaintiffs initially designated the expert as a probable witness, but later decided not to use the expert as a witness and so informed the defendants. Since the plaintiffs had decided not to call the expert to the witness stand, they did not give the defendants any information about the substance of his evalution.

After learning of the plaintiff's decision not to call the expert, the defendants contacted the expert directly and requested a copy of the report he had prepared for the plaintiffs. The expert sent a copy of his evaluation to the defendants and then defendants sought to call him as their witness at trial. On motion, the trial court excluded the testimony of the expert. The Court of Appeals for the Tenth Circuit affirmed. The court characterized an ex parte contact with an opposing party's expert witness as "unorthodox" and concluded that it was a violation of Rule 26(b)(4). The court stated:

Upon learning of the plaintiffs' decision not to call ia particular medical doctor as an expert witness], defendants contacted [the same doctor] and requested a copy of the report he prepared for the plaintiffs. [The doctor] sent them a copy of the evaluation and the defendants sought at trial to call him as their witness.

In proceeding in this rather unorthodox fashion, defendants violated Rule 26 of the Federal Rules of Civil Procedure. ... [Text of Rule quoted.]

The rule is designed to promote fairness by precluding unreasonable access to an opposing party's diligent trial preparation. See Advisory Committee Notes, Fed. R. Civ. P. 26(b) (4) (B); Ager v. Jane C. Stormont Hospital & Training School for Nurses, 622 F.2d 496, 502 (10th Cir. 1980)....

In proceeding as they did, defendants circumvented the discovery process and subverted the principle of fairness that underlies Rule 26(b) (4) (B). Defendants disregard of the Rule, coupled with the prejudice [the expert's] specially informed opinion might work on plaintiffs' case, justified the trial court's exclusion of the proffered evidence.

Durflinger, 727 F.2d at 891. (Emphasis supplied.)

In another case, a court faced with circumvention of Rule 26 not only excluded the expert's testimony but disqualified the offending law firm from further participation in the case. American Protection Insurance Co. v. MGM Grand Hotel-Las Vegas, Nos. CIV-LV-82-26, HEC CIV-LV-82-96, HEC (D. Nev. December 8, 1983) (LEXIS Slip Op., Genfed Library, Dist. File), appeal dismissed, 765 F.2d 925 (9th Cir. 1985), on remand, ABA/BNA Lawyers Manual on Professional Conduct, pages 89-90 (April 2, 1986). In American Protection, defendant, the MGM Grand Hotel, retained a former employee as an expert and designated him as both a testifying witness under Rule 26(b) (4) (A) and its non-testifying consultant under Rule 26(b) (4) (B). Subsequently, one of the plaintiff's attorneys met with the expert and persuaded him to defect from the defendant's service.

When MGM discovered the situation, it moved to disqualify both of the opposing plaintiff law firms. The trial court disqualified one of the law firms, noting that, even atcommon law, "such conduct as trying to secure information from another party's expert is prohibited." American protection, LEXIS slip op. at 13. The appeal from the trial courts determination was dismissed because it was not a collateral order subject to immediate appeal as a final judgment American Protection, 765 F.2d 925 (9th Cir. 1985); after remand, the plaintiffs moved for reconsideration, and their motion was denied. American Protection Insurance Co. v. MGM Grand Hotel-Las Vegas, No. CV-LV-82-26-HDM (D. Nev. March 13, 1986), cited in ABA/BNA Lawyers Manual at pp. 89-90.

The only State Ethics Committee opinions dealing specifically with the impact of Rule 26 are from Alaska. Like Arizona, Alaska has adopted Federal Rule 26 as its state rule. In Opinion 84-8, Alaska allowed attorneys to make informal ex parte contacts with experts retained by an opponent. However, shortly thereafter, in Opinion 85-2, the Alaska Committee reconsidered and overruled Opinion 84-8. The Alaska Ethics Committee was convinced that a rule which allowed informal contacts had "serious inherent problems." The Alaska Ethics Committee concluded that discovery could be obtained from experts covered by Alaska Rule 26(b) (4) only in accordance with that ruler or by the advance agreement of opposing counsel.

The Wisconsin Committee on Professional Ethics has issued an opinion that conflicts with the Alaska view. Wisconsin Opinion E-83-13 focused on the propriety of contacting the opposing party's expert witnesses, including treating medical doctors, without the permission of opposing counsel. The Wisconsin Committee issued a shotgun opinion that allowed ex parte contacts with the opponent's experts, without making a distinction between a treating doctor whose “facts known and opinions held" were not "acquired or developed in anticipation of litigation or for trial," and a person retained in anticipation of litigation or for trial to form and render an expert opinion. Except for an earlier Wisconsin opinion, discussed below, the only authorities relied on in the Wisconsin opinion simply support the proposition that an attorney can contact his opponent's "witnesses." Moreover, the Wisconsin Committee failed to even consider the impact of Rule 26(b), although Wisconsin has also adopted the Federal Rules of Civil Procedure. See e.g., Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648, 652 (1985).

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8. Opinion 85-2 from the Alaska Ethics Committee may be found in digest form in the ABA-BNA Lawyers Manual on Professional Conduct on pages 801-1204 and 801-1205 of the Ethics Opinion Volume for the years 1980-1985.

9. As previously noted, such a witness does not fall within the scope of Rule 26(b) (4). Ager, supra. Also see Rodrigues v. Hrinda, 56 F.R.D. 11 (W.D. Pa. 1972) (treating physician of a patient whose physical condition is in issue is not an "expert" within the meaning of F.R.C.P. 26).

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The persuasive value, if any, of Wisconsin Opinion E-83-13 is further diminished by several other factors. The Committee relied on Wisconsin Memorandum Opinion 2/77, which contains no analysis and cites no other authority:

2/77, Interviewing Opposing Party's Expert Witness.

It is not ethically improper for an attorney to contact an opposing party's expert witness or the officers of the company employing the expert witness without the permission of the opposing counsel.

Furthermore, the Wisconsin courts have effectively rejected Opinion E-83-13. In State ex. rel. Klieger v. Alby, 125 Wis. 2d 468, 373 N.W.2d 57 (Ct. App. 1985), pet. for review denied, 127 Wis. 2d 572, 383 N.W. 2d 64 ( 1985), the Wisconsin Court of Appeals held that a plaintiff could properly prevent ex parte contacts with his treating physicians based upon Wisconsinrs physician-patient privilege. The court added that informal discovery of experts outside of the established procedural rules was prohibited even if the applicable state privileges were ignored:

The methods of discovery allowed in Wisconsin are set forth in sec. 804.01(1), Stats. Permissible methods of discovery include oral or written depositions and interrogatories. The definition of "discovery" nowhere includes informal, ex parte conferences.

Unlike depositions, private conferences do not fall within the allowable scope of discovery....

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Requiring respondents to follow the discovery procedures set forth in the rules of civil procedure should prove no hardship. In preparing for trial parties can require discovery of experts and disclosure of all facts known and opinions held by such experts within the limits of the claimed injuries. In particular, parties may obtain anything in a doctor's file by obtaining a court order allowing inspection of the doctor's files or all hospital medical records and reports. By creating the codes of evidence and civil procedure; our supreme court has determined that these discovery tools adequately protect plaintiffs' interests while affording defendants the best opportunity to discover facts.

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10. A telephone call to the Wisconsin Bar Association confirmed that this is the entire text of the opinion. (Maru, 1980 Supp to Digest of Bar Assn. Ethics Opinions, § 13202)_____________________

We note that the Supreme Court authored both the Wisconsin rules of evidence and civil procedure under legislative authority and under the court's inherent and implied powers. In the statutes discussed above, the court has therefore set the parameters for discovery of information to be obtained from a party's physicians. This judicial policy, in our opinion, excludes attempts at shortcuts around the procedural or evidentiary rules. These codes set forth rules that all litigants, lawyers and judges must follow. If they are not followed our legal system will lack procedural and evidentiary order. Of course, parties can voluntarily waive their interests under the procedural and evidentiary codes, but if they do not, their opponents' only recourse is to follow the codes.

Klieger, 373 N.W. 2d at 60-61, (footnotes omitted; emphasis supplied).

The Committee on Professional Ethics of the New York State Bar.Association has recently issued an opinion dealing with the question of ex parte contacts with expert witnesses. In Opinion No. 57712, the New York committee addressed the question whether an attorney could properly communicate with an expert witness retained by an opponent without the knowledge, permission, or consent of opposing counsel. Relying on now-abandoned Alaska Opinion 84-8 and Wisconsin Opinion E-83-13, the New York committee stated the issue to be "whether an expert witness retained by a party in an adversarial context is a 'party... represented by a lawyer'" within the meaning of DR 7-104(A) (1). The committee concluded that an expert witness is not a "party," but a "witness," and since it is ethical to interview "witnesses" ex parte, there is no ethical prohibition against such an interview with an expert. Like Wisconsin Opinion E-83-13, the committee made no distinction between lay and expert witnesses. The committee then noted that both New York and Federal procedural rules controlled the permissible scope of expert witness discovery. However, the New York committee declined to decide whether or not these procedural rules would prohibit ex parte contacts with expert witnesses "because matters of law are beyond the authority of this Committee," and instead cited Campbell Industries as a guide to resolution of the issue. The New York opinion therefore provides no real guidance on the crucial question of the impact of Rule 26(b) on ex parte contacts with expert witnesses.

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11. The court apparently concluded that all experts, including treating physicians, are subject to Section 804.01, Wisconsin Statutes, the state analog of F.R.C.P. 26(b)(4).

12. The full text of Opinion No. 577 was reported by the New York State Bar Journal in January, 1987.

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Finally, the Committee on Ethics of the Maryland State Bar Association has issued an opinion concluding that a defense attorney could contact the plaintiff's designated expert witness and ask for an informal meeting. In that case, defendant's attorney met with the plaintiff's physician expert at a break between two sessions of a deposition. The doctor refused to go to a proposed later meeting and told the plaintiff's attorney what had happened. Since the Maryland Committee on Ethics could not find a specific ethical rule governing the situation, it concluded that the actions of defense counsel were "ethically proper." In reaching its conclusions, the Maryland Committee made no reference to the Maryland Rules of Civil Procedure concerning allowable discovery or the Federal Rules of Civil Procedure.

There do not appear to be any other ethics opinions that are relevant. ABA Formal Opinion 14 (1929) (Maru, Digest of Bar Assn. Ethics Opinions, § 14) holds that a defendant's attorney may properly question and obtain written statements from a plaintiff's attending physicians, who typically are not Rule 26(b)(4) experts. ABA Opinion 127 (1935) (Maru, op. cit., § 127) allows a lawyer representing a widow to informally contact the doctor who treated her deceased husband when the opposing attorney has subpoenaed that doctor as a fact witness. ABA Informal Opinion 892 (1965) (Maru, 1970 Supp. to Digest of Bar Assn. Ethics Opinions, § 5489) held that there is no ethical restriction on defense counsel's right to interview the plaintiff's attending physician. Washington State Bar Opinion 115 (1962) (Maru, Digest of Bar Assn. Ethics Opinions, § 4633) involved contacts with the adverse party's own treating physician. None of these opinions involve a Rule 26(b) expert witness. See Ager v. Jane C. Stormont Hospital, supra. Also see Rodrigues v. Hrinda, supra, and proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 503 (1970).14

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13. Maryland Ethics Docket 85-29 (1984).

14. Compare Doe v. Eli Lilly & Co., 99 F.R.D. 126 ( D.D.C.1983) , which involved ex parte interviews with treating physicians, and International Business Machines Corp. v. Edelstein, 526 F.2d 37 (2d Cir. 1975), which concerned interviews with lay fact witnesses. Neither case treated the witnesses as Rule 26(b) (4) experts or dealt with the requirements of Rule 26. _____________________

It has been suggested to this committee that there are good reasons to “justify” circumvention of Rule 26. It is true that informal discovery may be easier, less costly, conducive to spontaneity and candor and an accelerant to the settlement process. These are worthy goals. Presumably, the discovery rules adopted by the Arizona and united States Supreme Courts are already designed to foster all of those goals.15 However, these arguments should be addressed to the Civil practice and procedure Committee of the State Bar of Arizona and to the Arizona Supreme Court, or to the appropriate federal authorities. In other words, if attorneys want to have the right to engage in ex parte communications with an opposing party’s Rule 26(b) (4) expert, then they should urge an appropriate change in the Arizona and Federal Rules of Civil Procedure.16

In analyzing the issue presented, it is important to recognize that Rule 26(b)(4) does not cover all expert witnesses, but only those whose knowledge has been acquired or whose opinions have been developed in anticipation of litilitigation or for trial. See Rule 26(b) (4). Generally speaking, expert witnesses who will testify at trial fall into several categories:

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15. Although it has been suggested that permitting ex parte contacts will help reduce the cost of litigation, the opposite result may in fact be more likely. Assuming that an 'expert' is willing to visit ex parte with opposing counsel, counsel will, of course, have to pay the expert for his or her time. Who is going to pay the expert for the time spent preparing for the meeting? Under Rule 26(b) it is contemplated that the party who retained the expert will pay for time spent preparing for a deposition or trial. Nothing in that rule requires the party retaining the expert to pay for time the expert spends preparing to meet ex parte with opposing counsel. If the witness does not spend the time necessary to adequately prepare for the meeting, the chances are good that the witness will be inadequately prepared and will make statements that are based on incomplete information or lack of adequate preparation.

A rule permitting ex parte contacts may well create a situation in which adverse counsel will attempt to impeach expert witnesses based on ill-considered statements made (or allegedly made) during ex parte meetings. Ex parte contacts may achieve little more than the creation of a whole new area of potential controversy that is at best marginally relevant to the substantive issues the parties are litigating. See Alaska Opinion 85-2 for a discussion of the problems experienced in Alaska following the adoption of Opinion 84-8.

16. As our Court of Appeals recently noted, “rules of procedure enacted by our supreme court cannot be disregarded by the parties, counsel or the courts." Hyman v. Arden-Mayfair, Inc., 150 Ariz. 444, 450-451, 724 P.2d 63, 69-70 (1986), citing Garcia v. State, 148 Ariz. 146, 713 P.2d 347 (App. 1986).

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A. Witnesses who acquired factual knowledge by virtue of their participation in the events giving rise to litigation but who, because of their qualifications, are also able to give opinion testimony. The facts known and opinions held by these individuals are not "acquired or developed in anticipation of litigation or for trial” and, therefore, they are not subject to the requirements of Rule 26(b) (4). Examples are treating or attending physicians, and accident reconstruction experts called to the scene by the police. Under Rule 26(b) (4), the facts known and opinions held by these experts are freely discoverable unless some other rule or privilege prohibits such discovery. In the case of an attending or treating physician, the doctor-patient privilege may prohibit ex parte contact with these witnesses in the absence of a written waiver or court order.

B. Witnesses whose knowledge of facts and opinions held are acquired or developed in anticipation of litigation or for trial. Examples are the independent physician retained by counsel to conduct an examination of a party and an accident reconstruction expert hired by counsel to determine and opine as to the cause of an accident. These experts fall within the provisions of Rule 26(b) (4) and, therefore, after obtaining the information permitted by interrogatories under Rule 26(b) (4) (A) (i), a party may obtain further discovery only upon motion and order of the court, or by stipulation and agreement of counsel.

Arizona attorneys are required to comply with the applicable rules of court, whether state or federal, and it is unethical knowingly to violate such a rule. If an adverse party's designated expert witness falls within the scope of Rule 26(b)(4), a party may obtain discovery of facts known and.opinions held by such an expert only by the procedures set forth in the rule. An ex parte contact with such an expert witness would be a violation of the rule and therefore unethical.

DISSENTING OPINION

The majority opinion resulted from a 14 to 8 vote of 22 committee members. The dissenting minority takes the position that neither the Ethical Rules nor the Arizona Rules of Civil Procedure prohibit the conduct at issue. In fact, Canon 39 of the former Canons of Professional Ethics stated:

"A lawyer may properly interview any witness or prospective witness for the opposing side in any civil suit or criminal action without the consent of opposing counsel or party."

The minority does not disagree with the conclusion that, pursuant to ER 3.4(c), a lawyer is ethically obligated to adhere to the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. However, it is the majority's restrictive interpretation of A.R.C.P. 26(b) (4) that is flawed. Clearly, court rules are subject to different interpretations, but no case states that under all circumstances the rule in question prohibits informal or ex parte discovery.

A close reading and comparison of the Arizona Supreme Court opinion in Granger vs. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982), with the Ninth Circuit Court of Appeals opinion in Campbell Industries vs. M/V Gemini, 619 F. 2d 24 (9th Cir. 1980), both of which are relied upon by the majority, demonstrates that similar conduct analyzed pursuant to Rule 26(b) can receive considerably different judicial treatment.

In Granger, the plaintiff's attorney consulted with an expert whom he decided not to call as a witness. That expert was identified as Dr. Burkhardt. The court noted: "Several months prior to trial, defense counsel contacted Dr. Burkhardt and inquired whether he would be willing to testify on behalf of Dr. Wisner. Dr. Burkhardt agreed to do so.VI 134 Ariz. at 379, 656 P.2d at 1240. The Arizona Supreme Court then analyzed the requirements of Rule 26(b)(4)(B) and pointed out that subsection (B) was designed to protect against the danger that one party will use another party's consulting expert to prepare his or her own case. The court further recognized that the rule does not address itself to the admissibility at trial of the testimony of such an expert, nor does it provide an express basis for the suppression of such testimony. The court concluded that trial courts are vested with wide discretion concerning discovery. 134 Ariz. at 381, 656 P.2d at 1242. It then affirmed the trial court's decision to permit the witness to testify. The Court stated:

Given the late presentation of the objection, the lack of impropriety by the defense and the restriction imposed by the court to obviate or minimize the danger of prejudice to the plaintiff, we believe the trial court's ruling was eminently proper and was the best way to handle the problem under the circumstances.

Granger, 134 Ariz. at 382, 656 P.2d at 1243 (emphasis supplied).

In contrast, the court in Campbell Industries found that defendant's attorney had contacted plaintiff's expert ex parte on several occasions and that plaintiff's expert had expressed a willingness to testify on behalf of defendant. 619 F.2d at 26. When the defendant's attorney requested permission from the District Court to take that expert's deposition, such permission was denied and the District Court then sanctioned the defendant for violating the rules governing discovery of expert witnesses by making ex parte contact with the plaintiff's expert. The Ninth Circuit affirmed the sanction, but pointed out that: "One obvious factor in our review is that the preclusion of Torbert's [plaintiff's expert] testimony did not unduly prejudice Gemini's case . . ." 619 F.2d at 27.

It must also be emphasized that the court never made a finding as to whether counsel's ex parte communications with plaintiff's expert violated the discovery rules because the defendant conceded that issue on appeal:

Gemini concedes that its counsel's ex parte communications with Torbert while Torbert was still retained by Campbell violated the expert discovery rules, which require court permission for oral discovery of experts. Fed. R. Civ. P. 26(b) (4). ...

619 F.2d at 27.

In each instance cited above, the defendant's attorney made contact with plaintiff's expert witness and in each instance there was a rule of civil procedure which designated the manner in which discovery of opposing counsel's experts could be undertaken. In no case did the rules expressly permit the type of conduct engaged in. However, in one case, the expert was permitted to testify and in the other, the expert was precluded from testifying. However, in neither case did the court state that the attorneys in question were guilty of any unethical conduct. What the majority of the committee fails to recognize is that rules of discovery are subject to interpretation and application based upon the facts of the specific case in question. The majority also fails to recognize that:

The Rules regulating pre-trial discovery do not purport to set forth the only methods by which information pertinent to the litigation may be obtained. Personal interviews, although not expressly referred to in our Rules, are an accepted, informal method of assembling facts and documents in preparation for trial. Their use should be encouraged as should other informal means of discovery that reduce the cost and time of trial preparation.

Stempler vs. Speidell, 100 N.J. 368, 495 A.2d 857, 864 (1985) ·

The majority opinion demonstrates that other jurisdictions have not rushed to make the conduct in question unethical. This seems to demonstrate the continuing adherence by other jurisdictions to the long-held principle of allowing free and open contact with witnesses. The majority opinion also candidly admits that the ABA Formal Opinions that were researched in no way declared unethical conduct similar to the conduct at issue.

The majority agonizes over such questions as: Who would pay the expert for the time spent preparing for the meeting that resulted from the ex parte contact; what if the expert is not adequately prepared for the meeting; what if adverse counsel attempts to impeach the expert based upon statements made during the ex parte meeting. These questions ignore the realities of litigation. First, the paid experts that the majority is attempting to protect are well aware that they can charge for their time and, in general, charge whenever there is any excuse to do so. If the examining attorney is unwilling to pay that charge, the paid expert will not consent to any meeting. If the expert makes a misstatement at the meeting, that is no different than any other witness making a misstatement during the court of pre-trial litigation and then correcting that statement at the time of trial.

The judicial system's slow, inefficient and expensive characteristics are under considerable attack. The majority injects further formality into the discovery process. This is contrary to the goal of promoting informal discovery which is easier and less costly, which is conducive to spontaneity and candor, and which is consistent with national efforts to make litigation more informal and more economical.

It is conceded that Arizona attorneys are required to comply with the applicable rules of court, whether state or federal. However, it must be recognized that the interpretation and application of those rules is left to the discretion of the trial court based upon a case-by-case interpretation of the facts at issue. In the Arizona state courts, it is not impermissible for an attorney to communicate ex parte with the other side's testimonial expert. The expert is free to refuse to speak in the absence of an expert fee and/or court order. However, that is a matter between the testimonial expert and the inquiring attorney. It is not a matter that requires a finding that ex parte contact with testimonial experts is unethical.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.

© State Bar of Arizona 1988 



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