To borrow from a popular travel destination slogan, what happens in mediation stays in mediation. Or does it?

The answer currently is maybe, as a Delaware bankruptcy judge presiding over the Chapter 11 bankruptcy case, In re: Boy Scouts of America and Delaware BSA LLC, considers whether certain documents fall within the scope of the mediation privilege.1

The fact that the court did not summarily rule that the documents sought were immune from discovery raises questions as to what other types of documents, once thought or presumed to be shielded from discovery, may need to be disclosed. Drafts of expert reports are such documents, as the conventional rule is that drafts are exempt from disclosure.

But when is a draft no longer a draft? The answer, unfortunately, is unsettled.

To frame this issue, we begin with what is certain.

Federal Rule of Civil Procedure 26(b)(4)(B) was amended in 2010 to extend discovery immunity to encompass a testifying expert's draft report prepared in anticipation of trial — except in the rare instance where the factual material contained in the otherwise protected documents is essential to the preparation of one's case.2

The protection applies regardless of the form in which the draft is recorded, whether written, electronic or otherwise.3 The purpose of the amendment was to simplify discovery obligations — including reduction of costs and removal of the red tape that hindered free communication — while simultaneously underscoring the importance of shielding draft documents and communications from discovery.

The advisory committee recognized that "routine discovery into attorney-expert communications and draft reports has had undesirable effects ... Attorneys may employ two sets of experts ... because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses."4

Though the careful deliberations that went into amending the rule were effective for implementation, the advisory committee failed to define the scope and definition of a draft.

Given the lack of guidance from the rule-makers, litigators have looked to the courts for guidance. The rulings, to date, on this issue have been inconsistent; however, the frustration of courts due to the ambiguity that has persisted for over a decade is unvarying.

For example, U.S. District Judge Frank Zapata of the U.S. District Court for the District of Arizona, in considering whether expert notes should be safeguarded from discovery, stated in the decision of the 2017 case Salazar v. Ryan, that "[i]n the absence of a 'bright-line standard,' courts attempting to determine if material is protected as a draft report have applied a fact-dependent inquiry."5

Judge Zapata further acknowledged, "The definition of what constitutes a 'draft report' is not evident from the rule itself, and there is little published authority on what is protected from disclosure."6

Similarly, in 2017 in In Re: National Hockey League Players' Concussion Injury Litigation, U.S. District Judge Susan Richard Nelson of the U.S. District Court for the District of Minnesota stated "[a]s other courts have acknowledged, there is little published authority on the question of what constitutes a 'draft' that is protected from disclosure."7

U.S. Magistrate Judge Terence Kemp, of the U.S. District Court for the Southern District of Ohio, also commented in 2014 in Wenk v. O'Reilly on the lack of a bright line rule, noting that the absence of one may be "appropriate ... since most cases will turn on their facts and this appears to be a fact-dependent issue."8

Some judges have attempted to lead the draft definition charge; those efforts, however, have not been widely adopted. For example, in the 2014 case of Republic of Ecuador v. Mackay, the U.S. Court of Appeals for the Ninth Circuit held that draft worksheets created for a section of the report by a testifying expert for use in his final report constitute draft materials covered under the Rule 26(b)(4)(B) protection.9

Judge Mary Ellen Coster Williams of the U.S. Court of Federal Claims held that an expert's "[s]preadsheets, graphs, presentations, and charts are protected under Rule 26(b)(4)(B), so long as the documents were prepared by the testifying expert to be included in draft reports."10

Moreover, in the 2019 case of County of Maricopa v. Office Depot Inc., U.S. District Judge Dominic Lanza of the U.S. District Court for the District of Arizona held that a column in a spreadsheet attached to the expert's report entitled "Notes" containing the expert's "thinking and questions regarding the items that [he was] categorizing" constituted work product that was not required to be disclosed.11

U.S. Magistrate Judge James Francis, in Deangelis v. Corzine before the U.S. District Court for the Southern District of New York in 2016, took the approach of looking to the dictionary for guidance on what constitutes a draft, stating that a draft is "[a] preliminary sketch or rough form of a writing or document, from which the final or fair copy is made."12

And one of the more informative efforts to determine whether a report should be stamped as draft can be found in the 2017 case Salazar v. Ryan in the District of Arizona, where Judge Zapata articulated, "[f]actors that may be relevant in determining whether the documents are a draft report include whether the documents were created for the purpose of being included in the final report, and whether they were actually included in earlier versions of the report."13

Unfortunately, whereas these cases can surely provide a starting point, they have not been widely cited and fall short of establishing much clarity on the distinction between draft and final expert reports.

The easiest solution to the ambiguity that exists would be for the advisory committee to delineate what constitutes a draft.

Courts, in particular circuit courts, are unlikely to be presented with an opportunity to create a bright line rule on this issue. Disputes surrounding expert reports arise in the context of discovery and are routinely disposed of at the trial level, while related district court decisions are afforded substantial deference on appellate review.

Irrespective of how the rule is amended, the solution should be rooted in work product protection that shields disclosure in the first instance.

Stated differently, because there is a well-developed body of case law that defines what is and is not attorney work product, a party seeking to shield a draft report from disclosure bears the burden to prove that the draft remains or contains a work product. The proposed clarity may limit the ability of litigators to shield documents from disclosure, but also provides certainty by rooting the rule in settled law.

Until the advisory committee acts, draft reports will remain in the purgatory-like space they have been in since the enactment of the 2010 amendment. Courts will need to continue making decisions on a case-by-case basis, which remains their only viable option. Neither litigants nor the courts benefit from the constant grappling.

Clarity is needed, but until then, litigators need to remain mindful that the report they deem as a draft may not be protected.

Reprinted with permission from the November 10, 2021, issue of Law360. © 2021 Portfolio Media, Inc. All Rights Reserved. 

1 See Rick Archer, Boy Scout Judge Mulls If Mediation Talks Shielded In Ch. 11, Law360 (October 19, 2021),
2 Fed. R. Civ. P.26(b)(3)(A) provides "the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." See also Hickman v. Taylor, 329 U.S. 495, 511(1947) (holding that "[s]ubstantialneedis demonstrated where the factual material contained in the otherwise protected documents is "essential to the preparation of one's case.").
3 Fed. R. Civ. P.26(b)(4)(B) advisory committee's note to 2010 amendment.
4 Id.
5 Salazar v. Ryan , 2017 WL 2633522, *2 (D. Ariz. June, 19 2017) (citing Wenk v. O'Reilly , 2014 WL 1121920, *5 (S.D. Ohio Mar. 20, 2014).
6 Salazar, 2017 WL 2633522, *2.
7 In re Nat. Hockey League Players' Concussion Injury Litig ., 2017 WL 684444, *1 (D. Minn. Feb. 21, 2017).
8 Wenk, 2014 WL 1121920, *5.
9 In re Application of Republic of Ecuador , 280 F.R.D. 506, 513 (N.D. Cal. 2012), aff'd sub nom.Republic of Ecuador v. Mackay, 742 F.3d 860 (9th Cir. 2014).
10 Davita Healthcare Partners, Inc. v. United States , 128 Fed. Cl. 584, 591 (2016).
11 Cnty. of Maricopa v. Office Depot Inc .,2019WL5066808,at*24(D.Ariz.Oct.9,2019).
12 Deangelis v. Corzine , 2016 WL 93862, *4 (S.D.N.Y. Jan. 7, 2016) (citing Oxford English Dictionary(2d ed. 1989)).
13 Salazar, 2017 WL 2633522 at *2.

Click here to view the full article