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First enacted in 1970, Rule 26(b)(3)(A) incorporates the attorney work-product doctrine discussed in the Supreme Court's seminal decision in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Rule 26(b)(3)(A) provides in relevant part: 'Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).' Fed. R. Civ. P. 26(b)(3)(A).
While Rule 26(b)(3)(A) mentions a 'party or its representative,' including an 'attorney, consultant, surety, indemnitor, insurer, or agent,' the word 'expert' is noticeably absent. This silence speaks volumes, in light of the fact that right after subsection (b)(3), Rule 26 contains another provision expressly dealing with experts. Concurrent with the enactment of Rule 26(b)(3)(A) in 1970, the drafters also implemented an entirely new provision in Rule 26(b)(4)(A) to address specifically the discovery of facts known and opinions held by a testifying expert that were 'acquired or developed in anticipation of litigation or for trial.' Fed. R. Civ. P. 26(b)(4) (1970).
The 1970 version of Rule 26(b)(4)(A) permitted interrogatories requesting 'the ...
