Work Product Privilege and Discovery of Expert Testimony: Resolving the Conflict between Federal Rules of Civil Procedure 26(b)(3) and 26(b)(4)

When an attorney furnishes documents containing work product to an expert witness, a potential conflict arises between the work product immunity of Rule 26(b)(3) and the expert discovery provisions of Rule 269b)(4). In this Article, Professors Henkel and Reed examine the approaches federal courts have taken to this conflict. They argue that any approach which either allows for the discovery of documents containing work product or allows for the discovery of document from which product has been expunged is contrary to the purposes of the federal rules. The authors then propose a solution to this conflict which protects both the work product immunity of Rule 26(b)93) and the expert discovery provisions of Rule 26 (b)(4).