Work-Product Doctrine - Civil Procedure II Forum

[studebaker07]

Okay so I am reviewing discovery and focusing on the scope of discovery and things that are not protected. I am getting hung-up on the work-product doctrine and how it operates. I understand that FRCP 26(b)(3) says that "documents and tangible things that are prepared in anticipation of litigation or for trial" may not be discovered unless these things are:
A) otherwise discoverable; and
B) the discovering party shows a substantial need for the materials.

Also from Hickman and 26(b)(3)(B) that "mental impressions, conclusions, opinions, or legal theories of a party's attorney" are protected under the work product doctrine.

I am confused about doctor's reports in particular. If a plaintiff goes to a doctor in anticipation of litigation and obtains a physical examination which he is going to use to support a claim or defense, is such a report protected under 26(b)(3) or will the court order that it be discovered even if the doctor (who could qualify as an expert witness) is not going to testify at trial?

Thanks.

[270910]

Bad hypo, because physical exams have their own federal rule if they need to be compelled, plus there are rules for doctor-patient privileged.

After that, it turns into picky analysis about what 'in anticipation of trial' and 'for trial' and all that crap means. There are circuit splits and its complex. You could probably write 10 pages analyzing a more detailed fact pattern about a doctors visit. There are not wrong and right answers - it depends.

[studebaker07]

But isn't the doctor-patient privilege limited? Doesn't the privilege only apply to verbal communication between a doctor and a patient? I agree with your point about physical exams being governed by federal rule (FRCP 35). But I am assuming that the report in my hypo corresponds to a condition the patient has that is the subject in controversy.

Our professor claims that doctor-patient privilege does not apply since the report would have been written as opposed to oral and that, although it may be confidential, it is not privileged. Also, our professor claims that the report would be discoverable even though the patient went to see the doctor in anticipation of litigation.

My problem is that I thought anything which was prepared "in anticipation of litigation" (meaning that a plaintiff has filed a lawsuit and is having the exam performed specifically to verify the injuries he received from an accident) is protected.

[270910]

But isn't the doctor-patient privilege limited? Doesn't the privilege only apply to verbal communication between a doctor and a patient? I agree with your point about physical exams being governed by federal rule (FRCP 35). But I am assuming that the report in my hypo corresponds to a condition the patient has that is the subject in controversy.

Our professor claims that doctor-patient privilege does not apply since the report would have been written as opposed to oral and that, although it may be confidential, it is not privileged. Also, our professor claims that the report would be discoverable even though the patient went to see the doctor in anticipation of litigation.

My problem is that I thought anything which was prepared "in anticipation of litigation" (meaning that a plaintiff has filed a lawsuit and is having the exam performed specifically to verify the injuries he received from an accident) is protected.

Broaden your mind. Your conception of what "in anticipation of litigation" means is far too rigid.

[studebaker07]

Broaden your mind. Your conception of what "in anticipation of litigation" means is far too rigid.

I guess that is just what our professor wanted the definition to be for this particular hypo. But in this case I guess the test that would be most apropos is the "primary motivation" test. So because the patient visited the doctor and asked him to perform this examination, the patient was anticipating litigation.

Alternatively, I would say that anytime a plaintiff has already filed a lawsuit, whether they visited a potential witness in anticipation of litigation would depend on the purpose of why they were going to see this person. Since in my hypo the plaintiff has already filed a lawsuit, him going to see the doctor for an exam that is specifically designed to find injuries associated with a dispute that is the subject matter of the underlying lawsuit would allow the doctor to be classified as an expert witness who was being seen "in anticipation of litigation".

So in that sense, wouldn't the doctors exam be protected as trial preparation material if the plaintiff had already filed the lawsuit and the reason for visiting the doctor was to obtain a report that would help him support one his underlying claims?