*1 The parties in this construction dispute are at issue over the disclosure of certain documents at the depositions of their experts. The plaintiff, the Morganti Group, Inc. (Morganti), and those other parties who have objected to the production of certain documents at expert depositions, Stamford Phase Four JV, LLC, United Steel, Inc., C&H Electric, Inc., and ICON Architecture, Inc. (Objecting Parties),[1] have spent considerable time negotiating and reaching an agreement resulting in a stipulation to produce a cohort of records, for which the court is grateful.

The agreement as embodied in a Stipulation, Docket Entry #214, covers the following production of records at the depositions of various experts:

The documents over which the parties disagree are:

*2 Morganti asserts that pursuant to Practice Book § 13-4(b)(3), which provides that a party is entitled to obtain “all materials obtained, created and/or relied upon by [an opponent's disclosed expert] in connection with his or her opinions in the case,” it is entitled to, essentially, the entirety of the expert's file.[4] The Objecting Parties assert that the disputed document request falls outside of the broad ambit of § 13-4(b)(3). The Objecting Parties argue that § 13-4(b)(3) mandates production of materials only when they are connected to the expert's actual opinion in the case, that is, those opinions the expert intends to advance at deposition and trial. Moreover, the Objecting Parties maintain that any documents otherwise subject to production are subject to the attorney-client privilege and work product doctrine so long as the expert does not rely on that information or those materials in formulating his or her opinions. The court is not persuaded.

Our Supreme Court has stated that our “rules of discovery, by facilitating an intensive search for the truth through accuracy and fairness, provide procedural mechanisms designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” (Internal quotation marks omitted.) Picketts v. International Playtex, Inc., 215 Conn. 490, 508, 576 A.2d 518 (1990). To this end the Supreme Court has recognized the “liberal discovery doctrines ... adopted in this jurisdiction.” Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 140, 491 A.2d 389 (1985). The liberality extends to expert disclosure. “The change in these rules in 1978 reflected a new attitude of allowing liberal pretrial discovery. Since 1978, the changes in the rules have continued to favor disclosure as to expert disclosure ([§ 13-4]) ...” W. Horton et al., 1 Connecticut Practice Series: Superior Court Civil Rules (2021 Ed.) Chapter 13. Discovery and Depositions, authors' comments. By its plain language, § 13-4(b)(3) casts a wide net over what expert materials are discoverable.[5]

To be sure, important limitations on discovery are observed when the attorney-client privilege or the work product doctrine is implicated. “As a general rule, [c]ommunications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice.” (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 157, 757 A.2d 14 (2000). “In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 52, 730 A.2d 51 (1999). “The work product doctrine protects an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible [items].” (Internal quotation marks omitted). Barksdale v. Harris, 30 Conn.App. 754, 760, 622 A.2d 597, cert. denied, 225 Conn. 927, 625 A.2d 825 (1993), citing Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Such privileges, however, are “strictly construed because [they tend] to prevent a full disclosure of the truth in court ...” (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 710, 647 A.2d 324 (1994). Additionally, such privileges are subject to waiver when confidential communications or attorney work product is voluntarily disclosed to a third party. Harp v. King, 266 Conn. 747, 767, 835 A.2d 953 (2003).

*3 The disclosure of any confidential communications or attorney work product to an expert is a voluntary disclosure to a third party that occasions the waiver of the privilege or doctrine. In Cox v. Burdick, 98 Conn.App. 167, 169-70, 907 A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006), the defendant, a prospective purchaser of a home, attempted to extricate herself from a stipulated judgment on the grounds that her attorney “pushed her” to enter into the stipulated judgment. The trial court declined to open the stipulated judgment. The defendant appealed and argued, inter alia, that the trial court improperly ordered the defendant's attorney to divulge confidential information protected by the attorney-client privilege. Id., 169. The Appellate Court noted in a footnote that at least some of the attorney's testimony might have been covered by the attorney-client privilege if not waived. Id., 172-73 n.2. The court commented, albeit in dicta, that “the defendant's expert witness ... was present in the conference room before the defendant signed the stipulated judgment, as well as in court at the time the judgment was rendered. These communications, therefore, were not made in confidence.” Id.

This commentary is consonant with the general principles informing the waiver of the attorney-client privilege and work product doctrine. As previously noted, the voluntary disclosure of confidential communications acts to remove the cloak of privilege. Harp v. King, supra, 266 Conn. 767. This principle is not applicable when the third party is an agent or employee of an attorney or client and who is necessary to the consultation. Olson v. Accessory Controls & Equip. Corp., supra, 254 Conn. 157. Where a testimonial expert, whose ultimate testimony is understood to be subject to cross examination, is provided with information by the attorney or the client, it cannot be said that the information is provided with a justified expectation that confidentiality would be preserved.[6] See State v. White, 169 Conn. 223, 235, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975) (privilege may be claimed only where justified expectation that communications would not be publicly disclosed). The source and content of information in possession of the expert, whether relied on for the expert's ultimate conclusions or not, are crucial to the proper cross examination of the expert. “It would be manifestly unfair to allow a party to use the privilege to shield information which it had deliberately chosen to use offensively, as Pharmacia did in this instance when it used the allegedly privileged documents to arm its expert for testimony.” CP Kelco U.S, Inc. v. Pharmacia Corp., 213 F.R.D. 176, 179 (D.Del. 2003). On these grounds the Objecting Parties' objection to the production of the disputed documents should be overruled.

Moreover, it cannot be maintained that the expert is an agent of either the attorney or client. One of the essential elements of agency is that the principal has the “right to control the agent's actions.” (Internal quotation marks omitted.) Essex Ins. Co. v. William Kramer & Associates, LLC, 331 Conn. 493, 508, 205 A.3d 534, 543 (2019). No claim is made in the present case, nor should one be made, that the Objecting Parties exercise the right to control their expert's evaluation of facts and conclusions. Indeed, if such is the case then this would be an important element of impeachment of the expert's credibility.

One final argument remains to be considered. The Objecting Parties direct the court to rule 26 of the Federal Rules of Civil Procedure, which governs, inter alia, expert related discovery, and which specifically protects from disclosure draft reports or disclosures and communications, with certain exceptions, between the party's attorney and any witness required to provide a report. Fed.R.Civ.P. 26 (b)(4)(B)[7] and (C),[8] respectively. This argument is unpersuasive because the state rule governing disclosure, Practice Book § 13-4(b)(3), does not contain the explicit prohibitions present in the federal rules. As to the documents encompassed within items one through three of the disputed document requests, the language of § 13-4(b)(3) makes no distinction between opinions once held by an expert in connection with a case or those which he or she intends to offer at trial. Indeed, a once held contrary opinion—or data possessed by an expert but ignored—may serve the important purpose of impeachment during cross examination, “the principal means by which the believability of a witness and the truth of his testimony [is] tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). To the extent that protection is sought for items four through six, any claim of privilege has been waived because it was voluntarily shared with the expert.

*4 A review of the history of the present federal rule is informative. The explicit recognition of protection for draft reports and a party's attorney communications in the 2010 amendments of the Federal Rules of Civil Procedure occurred in conjunction with an amendment to Rule 26(a)(2)(B)(ii) to require disclosure of all “facts and data” considered by the expert witness in forming an opinion rather than what was formerly required: “data or other information.” The Advisory Committee Notes on Rules-2010 Amendment indicate that the prior disclosure provisions were read to “authorize discovery of all communications between counsel and expert witnesses and all draft reports.” The 2010 Amendments were specifically “intended to alter the outcome in cases that have relied on the [prior] formulation in requiring disclosure of all attorney-expert communications and draft reports.” Id. This court's decision is informed by the thoughtful analysis of the Superior Court in Rosato v. Sodexo, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-15-6026202-S, 2017 WL 6503891 (November 29, 2017, Povodator, J.). The court in Rosato ruled draft expert reports and communications between the expert and counsel for the defendant were subject to disclosure. In so doing, it rejected an appeal to follow the approach of the post-2010 rule 26 of the Federal Rules of Civil Procedure and observed that “[t]he 2009 version of Practice Book § 13-4 was drafted against a backdrop of the pre-2010 version of Rule 26, under which these materials generally were subject to disclosure, such that it could be argued that in amending § 13-4, there was an assumption that these materials were subject to disclosure.” Id., *2.

For the foregoing reasons, the Objecting Parties' objections to the production of the disputed document requests are overruled.

THE COURT