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Republic of Ecuador v. Mackay

ELR Citation: 44 ELR 20031
Nos. 12-15572, -15848, (9th Cir., 01/31/2014)

The Ninth Circuit affirmed two lower court decisions ordering an oil company to produce expert witness documents for use in a foreign proceeding concerning an environmental contamination dispute in Ecuador. The court rejected the company's argument that the documents were presumptively immune from discovery under Fed. R. Civ. P. Rule 26(b)(3)'s protection for trial preparation materials. The 2010 amendments to Rule 26 did not fundamentally change the scope of work product protection for expert materials. The court's decision that Rule 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials is consistent with the rulings of two other circuits.