Despite the clear intent behind Rule 26(a)(2)(B), jurisprudential division exists among federal courts over how to interpret the interplay between Rule 26(a)(2)(B), Rule 26(b)(4), and the attorney-client and work product privileges. Compare
Krisa v. Equitable Life Assurance Soc'y, 196 F.R.D. 254, 259 (M.D.Pa.2000) (finding that disclosure of core work product to a testifying expert does not abrogate the privilege that attaches to such materials) with
Suskind, 2001 WL 92183, at *6 (“present weight of the caselaw tends to be in favor of allowing discovery of core attorney work product materials which have been considered by an expert”). This division, however, is hardly balanced, as the overwhelming majority of courts addressing this issue have adopted a pro-discovery position, concluding that, pursuant to Rule 26(a)(2)(B), a party must disclose all information provided to its testifying expert for consideration in the expert's report, including information otherwise protected by the attorney-client privilege or the work product privilege. See, e.g.,
In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375–1376 (Fed.Cir.2001) (“fundamental fairness requires disclosure of all information supplied to a testifying expert in connection with his testimony,” regardless of whether such information falls under the attorney-client or core work product privilege); Colindres v. Quietflex Mfg., 228 F.R.D. 567, 571 (S.D.Tex.2005) (“information that the expert creates or reviews related to his or her role as a testifying expert must be produced,” even when materials are privileged); Am. Fidelity Assurance Co. v. Boyer, 225 F.R.D. 520, 521 (D.S.C.2004) (requiring disclosure of core attorney work product materials that were used or consulted in preparation of expert report); Cornell Research Found., Inc. v. Hewlett, 223 F.R.D. 55, 78–79 (N.D.N.Y.2003) (disclosure of work product materials to testifying expert overcomes privilege); CP Kelco U.S. Inc. v. Pharmacia Corp., 213 F.R.D. 176, 178–179 (D.Del.2003) (requiring production of documents, which implicate the attorney-client privilege, reviewed by testifying expert because it would be “manifestly unfair to allow a party to use the privilege to shield information which it had deliberately chosen to use offensively”); Vitalo v. Cabot Corp., 212 F.R.D. 478, 479 (E.D.Pa.2002) (“Rule 26(a)(2)(B) ... vitiates a claim of attorney work product with respect to any information considered by a party's expert, whether or not relied upon by that expert”); In re McRae, 295 B.R. 676, 679 (Bankr.N.D.Fla.2003) (materials furnished to testifying expert must be disclosed because “plain meaning of Rule 26(a)(2) trumps protections afforded by attorney-client privilege and work product doctrine”). These courts reason that the disclosure of privileged materials to a testifying expert to formulate her testimony assumes that such materials will be made public or put at issue in the litigation, and effectuates a waiver to the same extent as *464 any other disclosure. See
In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d at 1375–1376 (finding waiver of attorney-client and work product privileges upon disclosure of confidential communications to testifying experts); United States Fid. & Guar. Co. v. Braspetro Oil Serv. Co., 2002 WL 15652, at *5–6 (S.D.N.Y. Jan.7, 2002) (finding waiver of attorney-client privilege when testifying expert reviews electronic disks containing otherwise privileged information); Paul Rice, 2 Attorney–Client Privilege in the United States § 9:33 (2005) (when an expert witness considers confidential attorney-client communications in developing her testimony, offering of opinions constitutes waiver of attorney-client privilege for those communications). Furthermore, this bright-line rule serves important policy considerations, including the facilitation of effective cross-examination and the resolution of uncertainty as to the discoverability of documentation divulged to a testifying expert. See, e.g.,
Musselman v. Phillips, 176 F.R.D. 194, 198 (D.Md.1997) (outlining policy considerations behind pro-discovery interpretation of Rule 26(a)(2)(B)).