## Facts

- John Krisa sued Equitable Life Assurance Society after Equitable denied his claim for total disability benefits under disability insurance policies.
- During discovery, Equitable designated several expert witnesses expected to testify at trial, including an attorney, a forensic accountant, and a physician.
- Krisa moved to compel production of materials connected to those testifying experts, including draft expert reports and correspondence between Equitable’s counsel and the experts.
- Equitable withheld documents, asserting work-product protection under Federal Rule of Civil Procedure 26(b)(3) and arguing that certain “cover” or “transmittal” letters were outside required expert disclosures.
- After a discovery hearing, the court conducted an in camera review of the withheld materials.

## Issues

1. Whether draft reports and related documents prepared by testifying expert witnesses are protected from discovery as work product.
2. Whether Rule 26(a)(2)’s requirement to disclose “data or other information considered” by a testifying expert overrides Rule 26(b)(3) protection for counsel’s opinion work product when such material has been shown to the expert.
3. Whether counsel’s cover or transmittal letters to testifying experts are discoverable.

## Decision

- The court largely granted the motion to compel and ordered production of withheld materials.
- Draft reports and other documents prepared by testifying experts were held discoverable and not protected as work product.
- The court held that Rule 26(a)(2) does not override Rule 26(b)(3) as to counsel’s opinion work product; disclosure of such core attorney mental impressions to an expert did not waive that protection.
- Transmittal letters to experts were generally discoverable, but the court withheld two documents to the extent they reflected protected core attorney mental impressions.
- Equitable was required to produce all withheld documents except two that contained protected opinion work product.

## Legal Principles

- Discovery concerning testifying experts under Rule 26(b)(4) extends broadly to materials bearing on the experts’ opinions, including draft reports and related expert-generated analyses.
- Rule 26(a)(2)(B)’s requirement to disclose “data or other information considered” by a testifying expert is interpreted broadly to permit meaningful inquiry into the basis and development of expert opinions.
- Opinion (core) work product—counsel’s mental impressions, conclusions, opinions, or legal theories—receives heightened protection under Rule 26(b)(3) and remains protected absent extraordinary circumstances.
- Providing core opinion work product to a testifying expert does not, by itself, waive the protection for that material.
- Attorney-to-expert transmittal letters are discoverable insofar as they reflect what was provided to the expert and the context of expert review, but any embedded core opinion work product may be withheld or protected.

## Conclusion

The court compelled broad expert-related discovery, ordering production of testifying experts’ draft reports and most attorney–expert correspondence, while preserving heightened protection for counsel’s core opinion work product even when disclosed to the experts.


Krisa v. Equitable Life Assurance Soc'y, 196 F.R.D. 254 (M.D. Pa. 2000)