The Superior Court of New Jersey Appellate Division recently issued a split decision in Dalton v. Crawley, Case No. A-4033-12T3.   In this case, the Appellate Division granted defendants in a medical malpractice action full access to the library of transcripts that a plaintiff had collected relative to past testimony given by the expert witnesses retained by the defendants.  The fact that these were gathered for purposes of cross-examination was the challenge by plaintiff not to have to disclose such information.   The Appellate Division oddly ruled that even if gathered for purposes of cross-examination, they are subject to discovery because they were not prepared by or for her in anticipation of a trial.  However the Appellate Division reversed a second Order by the Trial Court after concluding that to allow the defendants to know which of those transcripts the attorneys will use ultimately at trial to question the various experts would give the defendants direct access to the “mental impressions and thought processes of plaintiff’s attorney”.

Dalton had brought suit against 6 doctors and 4 healthcare systems following the death of her husband Derek Dalton in February 2008.   One of the defendants had gleaned from questions posed to an expert during a deposition that the plaintiff’s attorneys apparently had access to prior testimony.  Initially plaintiff refused to turn over this information including the transcripts arguing the work product doctrine.  The Appellate Court agreed with the defense position that the transcripts were discoverable, but that the defendants cannot before the trial find out which of the transcripts or which portions of the transcripts could or would be used to cross-examine the experts in front of the jury.   Clearly the decision on which transcripts to use and the portions of the transcripts to be used at trial are part of an attorneys mental impressions and are “inherently work product”.