## Facts

- The Republic of Ecuador sought U.S. discovery for use in foreign proceedings, including an international arbitration involving Chevron and Ecuador arising from environmental contamination allegations in the Ecuadorian Amazon.
- Ecuador filed an application in the Northern District of Florida under 28 U.S.C. § 1782 seeking discovery from Dr. Robert E. Hinchee, a Florida-based environmental engineer serving as a testifying expert for Chevron.
- The subpoena targeted (1) Hinchee’s personal notes prepared for his own use and (2) Hinchee’s email communications with non-attorneys, including other Chevron experts and Chevron employees who were not lawyers.
- Chevron intervened, produced roughly 94,000 pages, and withheld about 1,200 documents asserting work-product protection under Federal Rule of Civil Procedure 26(b)(3) and relying on the 2010 amendments concerning expert discovery.
- After in camera review of a sample of withheld documents, the district court ordered production of the withheld materials except draft expert reports and communications between Hinchee and Chevron’s attorneys or their staff.
- Hinchee and Chevron appealed the discovery order.

## Issues

1. Whether a testifying expert’s personal notes and communications with non-attorneys are protected from discovery as work product under Federal Rule of Civil Procedure 26(b)(3).
2. Whether the 2010 amendments to Rule 26(a)(2) expand work-product protection beyond draft expert reports/disclosures and attorney–expert communications.
3. Whether, if attorney opinion work product appears within expert materials, the proper remedy is categorical withholding or limited redaction.

## Decision

- The Eleventh Circuit affirmed the order compelling production.
- The court held that Hinchee’s personal notes and his non-attorney emails were discoverable because they were relevant to his expert opinions and their basis.
- The court held that Rule 26(b)(3) does not provide blanket work-product protection for all testifying expert materials.
- The court recognized limited protection for “core” attorney opinion work product embedded in expert materials, permitting redaction rather than wholesale withholding.
- The court maintained the exclusions for draft expert reports/disclosures and attorney–expert communications covered by Rule 26(a)(2) as amended.

## Legal Principles

- Relevant materials in a testifying expert’s file are generally discoverable under Rule 26(b)(1), subject to specific protections.
- Rule 26(b)(3) protects trial-preparation materials reflecting attorney (or representative) mental impressions and legal theories; it does not automatically shield an expert’s own notes and non-attorney communications.
- The 2010 amendments to Rule 26(a)(2) create explicit protection for (1) draft expert reports/disclosures and (2) attorney–expert communications (with specified exceptions), without extending protection to all expert materials.
- When attorney opinion work product is embedded within otherwise discoverable expert documents, targeted redaction—rather than categorical nondisclosure—may be required.

## Conclusion

The Eleventh Circuit held that, aside from protected draft reports and covered attorney–expert communications, a testifying expert’s relevant notes and non-attorney emails are discoverable, with only embedded core attorney opinion work product subject to redaction.


Republic of Ecuador v. Hinchee, 741 F.3d 1185 (11th Cir. 2013)