Picture a deposition of a plaintiff’s treating physician. Early in the deposition, defense counsel asks the usual questions about the physician’s communications with the plaintiff’s counsel. But the plaintiff’s counsel, claiming that the physician is a non-retained expert whom the plaintiff’s counsel represents in connection with the action, objects on the basis of privilege and instructs the physician not to answer. That can’t be right, but exactly why not? And if such communications are discoverable, then why wouldn’t communications between defense counsel and a corporate defendant’s employee who is designated as a non-retained expert be discoverable as well? A recent order from the Southern District of New York offers clarity.

In Ayotte v. National Basketball Association, 2024 WL 3409027 (S.D.N.Y. Jul. 15, 2024), the plaintiffs designated a treating psychologist as a non-retained expert and claimed he was represented in connection with the action by the plaintiffs’ counsel. Thus, when the defendant sought to discover communications between the plaintiffs’ counsel and the treating psychologist, the plaintiffs argued they were privileged.

The dispute came before the court, which began by observing that Federal Rule of Civil Procedure 26(b)(4)(C)’s work product protection over attorney-expert communications did not help the plaintiffs because the psychologist was a non-retained expert. Rule 26(b)(4)(C), however, applies only to “communications between [a] party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B)” — i.e., retained experts. But that was not the end of the inquiry, because Rule 26(b)(4)(C) “does not exclude protection under other doctrines, such as privilege or independent development of the work-product doctrine.” Fed. R. Civ. P. 26(b) advisory committee’s note to 2010 amendment.

The court reviewed the case law and found eleven cases adjudicating claims of privilege over an attorney’s communications with a non-retained expert. Eight had rejected the claim of privilege, whereas three deemed the communications protected. None, however, involved a treating physician. And that mattered, because both the Advisory Committee and the courts — including those that concluded the communications at issue were protected — “distinguished treating physicians as non-retained witnesses for whom disclosure of communications between plaintiff’s counsel and the witness could be warranted.” Indeed, when deciding not to extend Rule 26(b)(4)(C)’s work product protection to communications with non-retained experts, the Advisory Committee noted that treating physicians “are readily available to one side but not the other” and cited them as an example of the need for “broad discovery” to “show the ways in which the expert’s fact testimony may have been influenced.” Citing “a consistent recognition that treating physicians typically are hybrid fact-expert witnesses whose communications with counsel are not protected from disclosure,” the court found the plaintiffs’ counsel’s claim to represent the treating psychologist “immaterial” and ordered the plaintiffs to produce the requested communications.

But, one might ask, aren’t employees of a corporate defendant also “readily available to one side but not the other”? Would discovery of “the ways in which the expert’s fact testimony may have been influenced” not also justify rejecting a claim of privilege over communications with such employees when they are designated as non-retained experts? No, because of a key difference between treating physicians and employees of a party (in addition to the obvious differences in the nature of the counsel’s and party’s relationship with the witness). As the court explained, “[a]ll else being equal, treating physicians wear a cloak of independence and lack of bias as compared to retained experts.” This contrasts with “party employees who have built-in biases.” Because jurors do not expect a party’s employee to be truly impartial, “the need for determining the extent to which, if any, the party’s attorney may have influenced the witness’s testimony is more acute” for supposedly independent treating physicians.

Ayotte provides a concise but well-reasoned and well-supported analysis of why counsel’s communications with treating physicians should be discoverable. In short, treating physicians are a special case because, although the parties’ access to these witnesses is grossly asymmetric, jurors tend to consider them independent and unbiased. Counsel cannot have it both ways, getting to usurp a supposedly “independent” treating physician by “representing” the witness and then claiming privilege over all communications.