McKinnon v. Smock ( 1994 )

Benham, Presiding Justice.

We granted the writ of certiorari in this interlocutory appeal to resolve discovery issues concerning the attorney-client privilege and the opinion work product doctrine.¹ McKinnon v. Smock, 209 Ga. App. 647 (434 SE2d 92) (1993). We agree that the attorney-client privilege does not cover the identity of documents that a party reviews to prepare for a deposition, and that the opinion work product doctrine prevents disclosure of correspondence between an attorney and an expert witness to the extent the correspondence contains opinion work product.

Smock filed a medical malpractice action alleging that McKinnon improperly performed surgery on his knee. Smock moved to compel McKinnon to answer questions concerning medical records McKinnon reviewed in preparing for his deposition. The trial court ordered McKinnon to answer the questions, holding that the attorney-client privilege did not apply. McKinnon filed a motion to compel production of “all correspondence, common notes or other writing directed” to the medical expert Smock intended to call at trial. The trial court denied the motion to compel, holding that the correspondence from Smock’s attorney to the expert was opinion work product and protected from discovery under OCGA § 9-11-26 (b) (3). The Court of Appeals granted McKinnon’s application for interlocutory review and affirmed both of the trial court’s rulings.

1. The Georgia Civil Practice Act provides for “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” OCGA § 9-11-26 (b) (1). Georgia has a statutorily-recognized public policy to exclude from evidence communications between attorney and client. OCGA §§ 24-9-21 (2); 24-9-24; Williams v. State, 258 Ga. 281 (5) (368 SE2d 742) (1988). Because the disputed questions in this case do not ask for communication between McKinnon and his attorney, the attorney-client privilege does not apply. Therefore, McKinnon must answer the questions regarding the medical records he reviewed in preparing for his deposition, and when he first saw another doctor’s report.

2. Determining whether correspondence from an attorney to an expert is protected from disclosure requires an evaluation of the interplay between OCGA § 9-11-26 (b) (3), which protects opinion work product,² and OCGA § 9-11-26 (b) (4), which permits discovery of the facts known and opinions held by an expert.

Subject to OCGA § 9-11-26 (b) (4), § 9-11-26 (b) (3) permits the discovery of “documents and tangible things” prepared in anticipation of litigation or for trial “only in carefully limited circumstances.” Ga. Intl. Life Ins. Co. v. Boney, 139 Ga. App. 575 (3) (228 SE2d 731) (1976). If the party seeking the trial preparation material has affirmatively shown to the satisfaction of the trial court a substantial need for the evidence and that undue hardship will result should the seeking party be required to develop the evidence by other means, the trial court may order the production of the material following an in camera examination to ensure against disclosure of “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” OCGA § 9-11-26 (b) (3); Tobacco Road v. Callaghan, 174 Ga. App. 539, 540 (330 SE2d 768) (1985); Ga. Intl. Life Ins. Co. v. Boney, supra.

OCGA § 9-11-26 (b) (4) outlines the exclusive means by which a party may seek discovery of the facts known and opinions held by an expert acquired or developed in anticipation of litigation or for trial. Through interrogatories, a party may require another to identify expert witnesses expected to be called at trial, to state the subject matter as well as the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. OCGA § 9-11-26 (b) (4) (A) (i). A party may also depose another party’s expert by oral examination or by written questions, and may serve a request to produce documents and “tangible things” that contain matters within the scope of § 9-11-26 (b). OCGA § 9-11-26 (b) (4) (A) (ii). Section 9-11-26 (b) (4) provides a party with the means to prepare adequately for cross-examination of the experts called to testify by the opposition. Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 457 (349 SE2d 756) (1986).

Section 9-11-26 (b) (3) and (b) (4) appear in conflict when, as here, a party seeks material which originated with the attorney representing the opposition and which may contain facts relied on by the expert. The statutory tension came into being in the case at bar when, pursuant to § 9-11-26 (b) (4) (A) (ii), defense counsel requested plaintiff to produce

All correspondence to each expert witness . . . which describes or refers in any way to the facts of the case, the materials provided for his or her review, the review or analysis he or she was requested to perform, or the fee to be paid.

Plaintiff’s counsel refused on the ground that the request for production sought opinion work product protected from disclosure. We agree with plaintiff’s counsel.

Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. . . . This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways. . . .

Hickman v. Taylor, 329 U. S. 495, 510-511 (67 SC 385, 91 LE 451) (1947). Atlantic C. L. R. Co. v. Daugherty, 111 Ga. App. 144 (2) (141 SE2d 112) (1965). The protection afforded opinion work product

creat[es] an environment in which counsel [is] free to think dispassionately, reliably, and creatively both about the law and the evidence in the case and about which strategic approaches to the litigation are likely to be in [his] client’s best interests.

Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 392 (N.D. Cal. 1991). The protection shields an attorney’s preparation from disclosure because there is a “higher value” to be served in protecting the thought processes of counsel. Occulto v. Adamar of New Jersey, 125 F.R.D. 611 (D. N.J. 1989).

With these principles in mind, we conclude that (b) (3) is “subject to” (b) (4) only to the extent of the first sentence of (b) (3). That is, one seeking discovery of the facts known and opinions held by an expert acquired or developed in anticipation of litigation or for trial may do so without exhibiting a substantial need for the material and establishing the undue hardship that will result should the seeker have to employ other means to develop the evidence. However, discovery seeking the facts known and opinions held by the expert is subject to (b) (3)’s provision against the disclosure of “the mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation.” See Bogosian v. Gulf Oil Corp., 738 F2d 587 (3rd Cir. 1984). See also All West Pet Supply Co. v. Hill’s Pet Products Div., 152 F.R.D. 634 (D. Kan. 1993); North Carolina EMC v. Carolina Power &c. Co., 108 F.R.D. 283 (M.D. N.C. 1985). Thus, correspondence from an attorney to an expert is protected from disclosure to the extent that the correspondence contains the opinion work product of the attorney. Should a dispute arise over whether a particular document does contain protected work product material, the trial court must conduct an in camera review to ensure that mental impressions, conclusions, opinions, or legal theories of a party’s attorney or representative are not disclosed. Tobacco Road v. Callaghan, supra; Ga. Intl. Life Ins. Co. v. Boney, supra.

Judgment affirmed.

All the Justices concur, except Hunt, C. J., and Fletcher, J., who dissent.

1 The question presented for review is:

Whether the attorney-client privilege protects from discovery the identity of documents discussed between the attorney and client and whether the work product doctrine protects from discovery documents prepared by an attorney and submitted to an expert witness for use in trial preparation.

2 “Opinion work product” has been described as including such items as an attorney’s legal strategy, intended lines of proof, evaluation of the case’s strengths and weaknesses, and the inference drawn from interviews of witnesses. Sporck v. Peil, 759 F2d 312, 316 (3rd Cir. 1985).