Crone, J.
Afkinfemiwa Akinribade was charged with rape and provided a DNA sample that was sent to the State’s crime lab for testing. In this appeal, he challenges the trial court’s order to disclose his expert’s summary of the State’s lab report. We conclude that Akinribade waived any objection to the disclosure of the one page of the summary that he introduced into evidence at a deposition of the State’s DNA analyst, but that the State failed to make the requisite showing of either substantial need or exceptional circumstances to justify the disclosure of the remaining pages of the summary under Indiana Trial Rule 26(B). Accordingly, we affirm in part, reverse in part, and remand.
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Akinribade argues that the consultation summary of his expert, who is not expected to be called as a witness at trial, is not discoverable because the State failed to make the requisite showing of either substantial need or exceptional circumstances under Trial Rule 26(B) and that, in any event, the summary is protected by the work-product privilege.
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The State does not challenge Akinribade’s claim that the consultation summary is work product, but it argues that he waived the corresponding privilege with respect to the entire summary “the moment [he] introduced the report during the deposition and provided a copy to the testifying witness.”
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We agree with the State that Akinribade waived any privilege with respect to page three of the summary by introducing it into evidence at Wilson’s deposition—at that point, its contents were disclosed to the State, so that particular bell cannot be unrung. But as for the remaining six pages of the summary, we agree with Akinribade that the State failed to make the requisite threshold showing of either substantial need or exceptional circumstances under Trial Rule 26(B), and thus we do not even reach the question of whether Akinribade waived the work-product privilege.
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We agree with the State that Akinribade waived any privilege with respect to page three of the summary by introducing it into evidence at Wilson’s deposition—at that point, its contents were disclosed to the State, so that particular bell cannot be unrung. But as for the remaining six pages of the summary, we agree with Akinribade that the State failed to make the requisite threshold showing of either substantial need or exceptional circumstances under Trial Rule 26(B), and thus we do not even reach the question of whether Akinribade waived the work-product privilege.
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We note that the State cites no authority to support its assertion that a deposition is a court proceeding for purposes of Evidence Rule 502(a), and we leave that question for another day. We further note that both the State and the dissent overlook the fact that the issue before us is the discoverability of an expert’s report during discovery, which is governed by the Trial Rules, not the admissibility of the report in a “proceeding[] in [a court] of this State[,]” i.e., a trial or a hearing before a judge, which is governed by the Evidence Rules. Ind. Evidence Rule 101(a). In other words, Evidence Rule 502 is inapplicable here.
Accordingly, we affirm the trial court’s ruling as to page three of the summary, reverse the ruling as to the remaining six pages as an abuse of discretion, and remand for further proceedings consistent with this decision.
Affirmed in part, reversed in part, and remanded.
Weissmann, J., concurs
May, J., dissents with opinion.
May, Judge, dissenting with separate opinion.
When Akinribade introduced into the record at a deposition one page of an expert report that was protected from discovery by a work product privilege, he opened the door to the discovery of all seven pages of the report pursuant to Indiana Evidence Rule 502(a). The majority allows Akinribade to escape the repercussions of this intentional partial disclosure of attorney work product by holding the State did not demonstrate substantial need and exceptional circumstances creating undue hardship in the obtaining of substantially equivalent materials as required to obtain privileged materials under Indiana Trial Rule 26. In so holding, the majority chooses to “not even reach the question of whether Akinribade waived the work-product privilege.” Slip op. at 6-7. I, in contrast, believe waiver is the dispositive issue. Akinribade ought not be allowed to have his proverbial cake and eat it too. Therefore, I respectfully dissent.
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First, a deposition is a court proceeding for purposes of the Evidence Rules because the structure of a deposition follows that of a proceeding in a courtroom almost exactly, except for the presence of the judge. As illustrated in the case before us, a deposition is sworn testimony, during which parties can enter evidence into the record, cross-examine witnesses, and make objections. In addition, a deposition is transcribed by a court reporter. (See, e.g, App. Vol. II at 83 (witness sworn), 150 (Akinribade objects), 81 (court reporter’s certificate), 135 (Defendant’s Exhibit B, page 3 of 7 of Akinribade’s expert’s report)). Further, depositions are admitted during trial as an exception to the hearsay rule.3 Evid. R. 804 (exception to hearsay rule allowing the use of deposition testimony in lieu of live testimony under certain circumstances); Burns v. State, 91 N.E.3d 635, 639 (Ind. Ct. App. 2018) (victim’s testimony via deposition admissible at trial when victim unavailable). Further, many things that occur during depositions can have an impact on proceedings later held in the courtroom. See, e.g., Howard v. State, 853 N.E.2d 461, 465 (Ind. 2006) (“witness statements made during depositions are generally understood and widely recognized as testimonial”); Diggs v. State, 531 N.E.2d 461, 464 (Ind. 1988) (“deposition is admissible if the deponent invokes his Fifth Amendment privilege to remain silent when called as a witness”), cert. denied 490 U.S. 1038 (1989); Brittain v. State, 68 N.E.3d 611, 617-19 (Ind. Ct. App. 2017) (deposition testimony of victim did not violate Brittain’s confrontation right under the United States Constitution and the Indiana Constitution because Brittain had an opportunity to cross-examine victim during the deposition), trans. denied; Berkman v. State, 976 N.E.2d 68, 77-78 (Ind. Ct. App. 2012) (deposition testimony including defendant’s confession to the crime were admissible at trial), trans. denied, cert. denied 571 U.S. 863 (2013); Kalwitz v. Estates of Kalwitz, 759 N.E.2d 228, 233 (Ind. Ct. App. 2001) (admission of two exhibits during a deposition waived the Dead Man’s statute during trial), reh’g denied, trans. denied; Mundy v. Angelicchio, 623 N.E.2d 456, 462 (Ind. Ct. App. 1993) (parties’ failure to object to questions and answers during a deposition waives objection to the admission of those portions of the deposition); and Osborne v. Wenger, 572 N.E.2d 1343, 1344 (Ind. Ct. App. 1991) (portion of expert’s deposition testimony excluded because, during the deposition, Osborne did not lay a sufficient foundation to qualify the expert to give the opinion in question). Thus, because a deposition has all but one of the components of a proceeding in a courtroom and its contents can be used in lieu of live testimony or evidence at a proceeding in a courtroom, a deposition is a court proceeding.
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Because Akinribade waived work-product privilege when he intentionally introduced a portion of his expert’s report during a deposition, I would hold the trial court did not abuse its discretion when it refused to overturn its grant of the State’s motion for discovery of that expert’s entire report. Therefore, I respectfully dissent.