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The contemnor, Joseph Spiezer, appeals from the September 8, 1999, orderof the circuit court of Ogle County finding him in direct civil contempt andordering him incarcerated until such time as he turned over to the State a copyof a certain report made by a handwriting expert. Spiezer, an attorney, had beenretained by Eva E. Castro to defend her against a charge of first-degree murder. Spiezer had consulted with a handwriting expert, Anthony Iantosca, whosubsequently made a report. The trial court ordered Spiezer to turn over a copyof the report to the State, but he refused, resulting in the contempt finding andjail sentence. Spiezer argues that the trial court's order should be reversedbecause the report is not discoverable, as disclosure would violate the followingof Castro's constitutional rights: the sixth amendment right to effectiveassistance of counsel, the fifth amendment privilege against self-incrimination,and the right to equal protection of the laws. In addition, Spiezer argues thatan attorney should not be held in contempt for failing to turn over a documentthat the court has in its possession.

On May 6, 1999, the trial court entered an order granting Castro's motionappointing expert witnesses whose fees were to be paid by the State. One suchexpert was Anthony Iantosca, who was to perform a handwriting analysis on an itemthat was to be used by the State as evidence at trial. On or about May 20, 1999,Iantosca provided his report to Spiezer. On July 13, 1999, the State filed itsmotion to produce, pursuant to Supreme Court Rule 413(c) (134 Ill. 2d R. 413(c)),requesting production of the Iantosca report.

On July 28, 1999, the trial court granted the State's motion. In itsruling, the trial court acknowledged that Spiezer had indicated that he did notintend to call Iantosca at trial. The trial court found that Iantosca's report"is purely scientific in nature and doesn't include any statements made by[Castro]." The trial court ordered Spiezer to provide the State with a copy ofthe report by August 9, 1999. At that time, Spiezer requested a "final andappealable order," stating, "I don't intend to comply with that, and with all duerespect, I don't think I can *** in fairness to my client."

At the hearing on August 9, 1999, the parties appeared before the trialcourt, and Spiezer again advised of his refusal to turn over the report. Thetrial court indicated that its order would not be final and appealable and thatthe court was unaware of a procedure permitting it to certify the question to theappellate court. The trial court then indicated that it would modify its priororder regarding the turnover of the report by appointing another judge, JudgePemberton, to review the report in camera to determine if it contained anythingprejudicial. Spiezer then agreed to provide a copy of the report for JudgePemberton's review.

On September 2, 1999, the parties appeared before the trial court andadvised that Judge Pemberton had indicated to Spiezer that the report was notprivileged and that he was to turn over the report to the State. Spiezer againstated that he would not turn over the report.

At a pretrial hearing on September 8, 1999, the trial court made a findingthat Spiezer's refusal to turn over the report was a willful violation of thecourt's orders and further found Spiezer in direct civil contempt of court. Thetrial court ordered that Spiezer be incarcerated in the Ogle County jail untilhe complied with the court order. The court noted that it had "otheralternatives, obviously, rather than incarcerating [him], but none of themproduce the report." The court stated that imposing a fine upon Spiezer wouldnot produce the report and that barring Spiezer from calling Iantosca at trialwould be of no effect since Spiezer did not intend to call him. The trial courtthen ordered a court officer to escort Spiezer to jail.

On September 10, 1999, Spiezer filed a motion to stay enforcement of thejudgment of contempt, arguing that he had acted in good faith to challenge theorder and that his incarceration approximately two weeks prior to jury trialwould deprive Castro of her right to the effective assistance of counsel. Spiezer argued that he intended to appeal the contempt order and requested thathe be released from jail pending the appeal. The trial court denied the motion. On that same day, Spiezer filed a notice of appeal.

Later that day, this court entered an order staying the judgment of civilcontempt until September 14, 1999, for consideration on an emergency basis by athree-judge panel of the appellate court. This court further ordered thatSpiezer be released. On September 15, 1999, this court allowed Spiezer's motionto stay upon plenary consideration. This court further ordered that Spiezerremain released from custody until further order of this court. Thereafter, thetrial court continued the Castro jury trial.

We have taken with the case the State's motion to strike certain portionsof Spiezer's appellate brief. The State alleges that Spiezer attached to hisbrief copies of certain reports of proceedings, rather than filing a motion tosupplement the record, in violation of Supreme Court Rule 323 (166 Ill. 2d R.323). The State moves to strike the transcripts and all references to them. Wedeny the State's motion, as we believe that Spiezer has provided in thesupplemental report of proceedings sufficient portions of the trial court recordfor this court to render our decision and that any materials attached to hisbrief do not shed any light on the legal issues presented by this case.

Turning now to the merits of the contempt proceeding, Spiezer sets forthvarious constitutional arguments with regard to the validity of the discoveryorder. The first is that compelling a criminal defendant to produce the reportsof nontestifying, consulting experts violates the defendant's right to effectiveassistance of counsel under the sixth amendment. The State responds that areport of a handwriting analysis would not reveal privileged communications andthat a handwriting consulting expert is not indispensable to Spiezer'spreparation.

Discovery in criminal proceedings is governed, in part, by Supreme CourtRule 413. See 134 Ill. 2d R. 413. Rule 413(c), pertaining to medical andscientific reports, provides as follows:

"Subject to constitutional limitations, the trial court shall ***require that the State be informed of *** any reports or results, ortestimony relative thereto, *** of scientific tests *** or any otherreports or statements of experts which defense counsel has in hispossession or control ***." 134 Ill. 2d R. 413(c).

In addition, Rule 413 is subject to the work product exception set forthin Rule 412(j):

"Disclosure under this rule and Rule 413 shall not be required of legalresearch or of records, correspondence, reports or memoranda to the extentthat they contain the opinions, theories or conclusions *** of defensecounsel or his staff." 134 Ill. 2d R. 412(j).

Neither Rule 413(c) nor the case law surrounding it, unlike Rule 213(g), whichis its counterpart in the civil arena, expressly provides whether Rule 413(c)applies to nontestifying as well as testifying experts. As such, it is necessaryfor us to determine whether a constitutional right or some other privilegeprotects reports of nontestifying, consulting experts from disclosure in criminalcases.

The use of expert witnesses in specialized fields is clearly crucial to acriminal defense attorney's ability to prepare for trial. In People v. Lawson,163 Ill. 2d 187, 219 (1994), our supreme court considered whether the trial courthad erred in denying the defendant's motion for funds to hire a fingerprint andshoe print expert for preparation in the defendant's murder trial. The Stateadmitted that the constitution may require that the State afford a criminaldefendant funds to hire experts, but it argued that the indigent defendant mustfirst name the expert he seeks to hire, as well as the expert's fee, before themotion may be granted. The court disagreed, holding that the constitutionalprotections could not be limited by the mere failure to name the price andidentity of the expert hired. The court was particularly moved by the resultsof defense counsel's ineffective cross-examination of the State's expert, whichresulted from counsel's inability to prepare without expert assistance. Thecourt also noted that a defense expert could offer opinions different from thoseheld by the State and that the State possessed an unfair advantage when it couldpresent expert testimony while, at the same time, the defendant could not. Lawson, 163 Ill. 2d at 230.

Once the expert has performed the necessary work for the defense but thenrendered an opinion or conclusion that is unfavorable to the defendant, sharpdisputes have arisen concerning whether defense counsel must disclose thatinformation. As discussed below, many jurisdictions have held that the reportsprepared by nontestifying, consulting experts are protected from disclosure. What is unclear, however, is the proper framework for the analysis. Fourdistinct bases for such protection have emerged in the case law discussed below:the fifth amendment privilege against self-incrimination, the sixth amendmentright to effective assistance of counsel, the attorney-client privilege, and thework product doctrine.

For the reasons that follow, we are most persuaded that the work productdoctrine protects from disclosure reports and other materials prepared bynontestifying, consulting experts and also prevents the State from introducingsuch evidence at trial. As a matter of first impression in Illinois, we delveinto a general discussion of the relevant case law to understand the evolutionof the protection afforded to materials prepared by nontestifying, consultingexperts, as well as their potential testimony, and to explore why protection ofsame is so critical in the criminal arena.

In United States v. Nobles, 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160(1975), the Supreme Court considered whether the production of a certain reportprepared by a defense investigator, who was to testify for the defense at trialto impeach the identification testimony of the State's witnesses, could becompelled. The Court rejected the argument that production would violate thefifth amendment, as the privilege against self-incrimination does not extend tothe testimony or statements of third parties called as witnesses at trial. Nobles, 422 U.S. at 233, 45 L. Ed. 2d at 151, 95 S. Ct. at 2168; see also Peoplev. Boclair, 129 Ill. 2d 458, 482 (1989) (Boclair II) (the fifth amendment was notviolated when, after excising privileged material in camera, the trial courtordered the defense to produce the notes taken by its investigator concerningwitness statements).

The Nobles Court next considered whether the work product doctrine wouldexempt the report from disclosure. Noting the history surrounding the creationof the work product doctrine, the Court relied upon the basic premise, originallyarticulated in Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385(1947), that:

" '[i]t is essential that a lawyer work with a certain degree ofprivacy, free from unnecessary intrusion by opposing parties andtheir counsel. Proper preparation of a client's case demands thathe assemble information, sift what he considers to be the relevantfrom the irrelevant facts, prepare his legal theories and plan hisstrategy ***. That is the historical and the necessary way in whichlawyers act within the framework of our system of jurisprudence topromote justice and to protect their clients' interests. ***'

The Court therefore recognized a qualified privilege for certain materialsprepared by an attorney 'acting for his client in anticipation oflitigation.' " Nobles, 422 U.S. at 237-38, 45 L. Ed. 2d at 153, 95 S. Ct.at 2169-70, quoting Hickman, 329 U.S. at 510-11, 508, 91 L. Ed. at 462,461, 67 S. Ct. at 393, 392.

The Court noted that the work product doctrine is most frequently assertedin civil litigation, but its role in the criminal context is more vital. Nobles,422 U.S. at 238, 45 L. Ed. 2d at 153, 95 S. Ct. at 2170. The Court characterizedthe work product doctrine as "intensely practical" and noted that attorneys mustoften rely on the assistance of investigators and other agents in preparing fortrial. Nobles, 422 U.S. at 238, 45 L. Ed. 2d at 154, 95 S. Ct. at 2170. TheCourt concluded that the work product doctrine protected material prepared byagents for the attorney. Nobles, 422 U.S. at 238-39, 45 L. Ed. 2d at 154, 95 S.Ct. at 2170. The Court declined, however, to delineate the scope of thedoctrine, holding that the defendant had waived the right to invoke itsprotections because the defendant had elected to present the investigator as awitness at trial. Nobles, 422 U.S. at 239, 45 L. Ed. 2d at 154, 95 S. Ct. at 2170-71.

Although no cases in Illinois have mirrored the precise factual and legalissues presented in Nobles, our supreme court in People ex rel. Bowman v.Woodward, 63 Ill. 2d 382 (1976), considered whether the defendant could invokethe fifth amendment privilege against self-incrimination in refusing to complywith the State's request for any scientific reports pertaining to the case. InWoodward, the State had filed a motion for discovery under Supreme Court Rule413(c), asking the defendant to inform the State whether any scientific tests hadbeen conducted and to provide the State with copies of any test reports. Thetrial court entered an order compelling the defendant to provide copies of testreports relative only to experts whom the defendant intended to call to testifyat trial. The State appealed, requesting disclosure of the names of all partieswho had conducted testing along with all test reports, regardless of whether theparties performing the tests would testify. The defendant argued that to compelthe disclosure of reports and statements of experts whom he had consulted, butdid not intend to call at trial, violated his fifth amendment privilege againstself-incrimination.

The reviewing court first noted that the State was conducting animpermissible fishing expedition in that the State did not know of the existenceof specific material but, rather, sought to force the defendant to reveal hisknowledge of whether tests had been conducted. Woodward, 63 Ill. 2d at 387. Thecourt then held that if the defendant were compelled to provide statements ofconsulting experts, or reports prepared by them, there would be a violation ofthe constitutional privilege against self-incrimination. Woodward, 63 Ill. 2dat 387. The court expressed approval of the holding in Jones v. Superior Court,58 Cal. 2d 56, 372 P.2d 919, 22 Cal. Rptr. 879 (1962). In Jones, the court heldthat to compel the defendant to produce information that he did not intend tointroduce at trial would violate his privilege against self-incrimination. TheJones court noted that information pertaining to, or prepared by, witnesses whomthe defendant intended to call at trial, on the other hand, was discoverable toallow the State to prepare for cross-examination of those witnesses. SeeWoodward, 63 Ill. 2d at 389.

The Woodward court considered the holding in Nobles that the fifthamendment privilege would not extend to statements made by third parties calledto testify at trial. Woodward, 63 Ill. 2d at 389. The court distinguishedNobles on the facts in that the defendant in Nobles planned to call theinvestigator to testify at trial regarding statements that prosecution witnesseshad made to the investigator. Woodward, 63 Ill. 2d at 389.

If we were persuaded that the fifth amendment privilege against self-incrimination were the appropriate basis for protection of materials fromnontestifying, consulting experts, then our analysis would conclude with theholding from Woodward. We are not entirely persuaded, however, by Woodward'sdistinction of the holding in Nobles. In People v. Lego, 116 Ill. 2d 323, 338(1987), our supreme court considered the application of Nobles and Woodward tothe issue of whether the defense was required to turn over tape recordings madeby defense investigators of interviews with State witnesses. The court held thatthe fifth amendment privilege was personal to the defendant and did not extendto statements taken of witnesses. The court also held that the work productdoctrine, which protects the mental processes of an attorney, does not apply to"[t]he verbatim statements of witnesses." Lego, 116 Ill. 2d at 339; see alsoPeople v. Boclair, 119 Ill. 2d 368, 375 (1987) (Boclair I) (work product doctrineis not implicated when the trial court, after excising privileged material incamera, ordered the defense to produce the notes taken by its investigator duringinterviews with witnesses that contained the witnesses' own words). NeitherBoclair I nor Lego addressed whether the work product doctrine may protectmaterials prepared by defense investigators and/or experts that do not involveverbatim statements of witnesses. Therefore, we are compelled to examineadditional case law for guidance as to the appropriate framework for ouranalysis.

There are no cases in Illinois applying Woodward to the situation at hand. However, we have found cases from other jurisdictions that consider whether thereports and potential testimony of nontestifying, consulting experts areprotected from disclosure to the State. Yet, these cases are not necessarilyconsistent in the basis upon which they rely to accord such protection.

In holding that the State may not call a handwriting expert retained by thedefendant to testify at trial, the New Jersey Supreme Court relied upon the sixth amendment right to the effective assistance of counsel. See State v. Mingo, 77N.J. 576, 392 A.2d 590 (1978). Prior to the expert's examination of thehandwriting exemplars, defense counsel had agreed to provide a copy of theexpert's report to the State. The report turned out to be adverse to thedefendant, and the expert was subpoenaed by the State to testify at trial. Overthe defendant's objections, the expert testified and the defendant was convicted.

The appellate court reversed, holding that the report and testimony of anexpert retained by the defense who does not testify at trial are not availableto the State. Mingo, 77 N.J. at 586, 392 A.2d at 595. The court explained thatthere were several bases for its holding, including the sixth amendment right toeffective representation and the attorney-client privilege, which it believedwere related. See also Perez v. People, 745 P.2d 650 (Colo. 1987). The courtfurther noted that these principles were closely related to the work productprivilege, although the State's use of an expert retained by the defense doesnot come within its scope. The court held that the intent behind all threeprotections, the fifth and sixth amendments and the work product doctrine, wouldbe subverted if the State were permitted to call consulting experts retained bythe defense. Mingo, 77 N.J. at 584-85, 392 A.2d at 594.

In so holding, the court was particularly persuaded by the need of defensecounsel to have "full investigative latitude in developing a meritorious defenseon his client's behalf." Mingo, 77 N.J. at 582, 392 A.2d at 592. In addition,the court believed that the State had no business calling the defendant's expertas its own witness, and that it was fully capable of retaining its own expert. Mingo, 77 N.J. at 581, A.2d at 592.

The court in United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975),analyzed the issue similarly. In Alvarez, after a hearing in which the trialcourt found the defendant competent to stand trial, the defendant requested theauthority to retain an additional psychiatrist in connection with defensepreparation. The court granted the motion and ordered that the defendant providereports of the psychiatrist to the government pursuant to Federal Rule ofCriminal Procedure 16. Rule 16(b)(1)(B), regarding the defendant's disclosureof reports, provides as follows:

"[T]he defendant, on request of the government, shall permit thegovernment to inspect and copy *** any results or reports ofphysical or mental examinations and of scientific tests orexperiments made in connection with the particular case *** whichthe defendant intends to introduce as evidence in chief at the trialor which were prepared by a witness whom the defendant intends tocall at the trial when the results or reports relate to thatwitness' testimony." (Emphasis added.) Fed. R. Crim. P. 16(b)(1)(B).

The defendant later moved to quash the government's subpoena to the psychiatristcompelling him to testify at trial. The trial court denied the defendant'smotion, and the psychiatrist testified at trial.

On appeal, the defendant argued that the disclosures to the governmentviolated the fifth amendment privilege against self-incrimination, the sixthamendment right to the effective assistance of counsel, and the attorney-clientprivilege. The reviewing court dispensed with the fifth amendment argument,noting that the defendant's statements to the psychiatrist were voluntary. Alvarez, 519 F.2d at 1045. With regard to the sixth amendment and attorney-client privilege arguments, the court noted that, in United States v. Kovel, 296F.2d 918 (2d Cir. 1961), the court held that communications to an accountant inanticipation of litigation are protected by the attorney-client privilege. SeeAlvarez, 519 F.2d at 1045. The court further noted that there was no differencebetween a defense counsel's need for expert assistance in accounting and inpsychiatry. "The effective assistance of counsel *** demands recognition thata defendant be as free to communicate with a psychiatric expert as with theattorney." Alvarez, 519 F.2d at 1046. The court held that what it characterizedas the "sixth amendment attorney-client privilege" would apply to protect thereports and potential testimony of nontestifying, consulting experts retained bythe defense.

The court further noted that Federal Rule of Criminal Procedure 16 waslimited to the production of medical reports that the defendant intends to useat trial and that the trial court's order regarding discovery went beyond therule in requiring reports of all experts regardless of whether they would testifyat trial. In discussing the application of the sixth amendment right to the effective assistance of counsel, the court was troubled by the notion that, underthe government's argument, defense counsel would run the risk that an expert heretained for advice and assistance might be forced to serve involuntarily as agovernment witness. Alvarez, 519 F.2d at 1046. The court held that such a rulewould have the inevitable effect of depriving defendants of the effectiveassistance of counsel. Cf. United States ex rel. Edney v. Smith, 425 F. Supp.1038, 1049 (E.D.N.Y. 1976), aff'd, 556 F.2d 556 (2d Cir. 1977) (noting that thesixth amendment claim is predicated upon the assumption that the disclosure wouldcompromise defense counsel's ability to investigate and prepare the defensecase); see also Noggle v. Marshall, 706 F.2d 1408, 1414 (6th Cir. 1983)(rejecting the conclusion in Alvarez that the guarantee of effective counsel doesnot insulate from disclosure the opinion of an expert retained by the defense asa potential witness). The Alvarez court did not reach the issue of whetherreports and potential testimony of nontestifying, consulting experts wereprotected by the work product doctrine.

Our research discloses only one case, United States v. Walker, 910 F. Supp.861 (N.D.N.Y. 1995), that compares the work product doctrine and the sixthamendment right to effective assistance of counsel as the proper basis to protectthe reports and potential testimony of nontestifying, consulting experts retainedby the defense. In Walker, the court considered whether the government would bepermitted to call two ballistics experts retained by the defense whom the defensedid not intend to call at trial. The court held that the government would notbe permitted to present testimony from the experts regarding the efforts theyundertook at the request of defense counsel unless the government first made ashowing of need of that testimony and an inability to obtain the substantialequivalent of that testimony without undue hardship. Walker, 910 F. Supp. at864. The court's holding parallels the requirements of Federal Rule of CriminalProcedure 16(b)(1)(B), as noted above, although the rule was not specificallyrelied upon by the court.

The court noted that, while the analysis by the Mingo court under the sixthamendment "applies with equal force here," its own conclusion was "grounded ina practical application of the work product doctrine." Walker, 910 F. Supp. at864. Recognizing that the issue of protecting expert work product delves into"unchartered waters," the court was persuaded by the comments in Nobles thatattorneys often must rely upon the assistance of investigators and other agentsin preparation for trial, which justifies the protection under the work productdoctrine. See Walker, 910 F. Supp. at 865-66. The court concluded that, absentthe application of the work product doctrine to consulting experts, a defendant'spreparation for trial "can only be crippled by the prospect of creating anunfavorable witness every time he attempts to obtain an unbiased assessment ofthe government's evidence by consulting an expert." Walker, 910 F. Supp. at 865. The court cautioned that the work product privilege is waived if the defensecalls its consultative expert to testify. Walker, 910 F. Supp. at 865.

As we stated earlier, we are persuaded by the holdings from all of theforegoing case law that the State is prohibited from discovering the identity andreports of nontestifying experts retained by the defense and is similarlyprohibited from calling such experts to testify at trial. We are persuaded bythe logic in these cases that to hold otherwise would constitute a violation ofthe work product doctrine. See Walker, 910 F. Supp. at 864; Nobles, 422 U.S. at238, 45 L. Ed. 2d at 154, 95 S. Ct. at 2170-71.

In holding that the work product doctrine is the proper basis of suchprotection, we must address why the other asserted bases are not. We believethat the attorney-client privilege and the privilege against self-incriminationarguments are easily dispensed with. As noted above, the fifth amendment self-incrimination argument has been rejected by several courts. See Alvarez, 519 F.2d at 1045; Boclair II, 129 Ill. 2d at 482; Lego, 116 Ill. 2d at 338.

Similarly, the attorney-client privilege argument has been rejected whenmade in the context of disclosure of opinions or materials that do not concernspecific communications made by the defense to its retained expert. See BoclairII, 129 Ill. 2d at 482; People v. Speck, 41 Ill. 2d 177 (1968) (the attorney-client privilege was not implicated when the State called a fingerprint expert,who had been consulted by the defense, to testify because the testimony did notconcern any communications between the defense and the expert); cf. People v.Knuckles, 165 Ill. 2d 125, 135 (1995) (held, as a matter of first impression,that the attorney-client privilege applied to protect the substance ofcommunications between the defense and its retained psychiatric expert).

We also note that the committee comments to Supreme Court Rule 413 expressthe view that the production of medical and scientific evidence does not violateeither the attorney-client privilege or the privilege against self-incriminationunless it is based upon statements made by the defendant. See 134 Ill. 2d R. 413.What is necessarily more difficult, for our purposes, than the self-incriminationand attorney-client privilege arguments, in light of Alvarez and Mingo, is thedistinction between the work product doctrine and the sixth amendment right tothe effective assistance of counsel.

The essence of the sixth amendment right is privacy of communication withcounsel. United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973). InStrickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692, 104 S. Ct.2052, 2063-64 (1984), the Supreme Court explained that two separate and distinctlines of case law have emerged from the interpretation of the sixth amendmentright to the effective assistance of counsel. The first is that the governmentviolates the right when it interferes in certain ways with the ability of counselto make independent decisions about how to conduct the defense. The second lineof case law concerns the failure of counsel to render adequate legal assistance. Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692, 104 S. Ct. at 2061-62.

In analyzing whether the sixth amendment right to effective assistance barsdisclosure of the Iantosca report, we are not dealing with the latterclassification of case law as explained in Strickland. That is to say, thequality of Spiezer's legal representation is not at issue. What we are concernedwith, however, is whether the disclosure of the report would constituteinterference in Spiezer's ability to make certain decisions about defensestrategy that rises to the level of a constitutional violation. There is nobright line rule that would tell us whether a certain type of governmental interference necessarily translates into a sixth amendment violation. However,we can be guided by some examples of that type of governmental intrusion.

Not all governmental action that arguably could be called an interferencewith the attorney-client relationship necessarily violates sixth amendmentrights. United States v. Irwin, 612 F.2d 1182, 1185 (9th Cir. 1980). In UnitedStates v. Marshank, 777 F. Supp. 1507, 1525 (N.D. Cal. 1991), defense counsel hadcollaborated with the government in the investigation and prosecution of thedefendant. The court held that this type of intrusion into the attorney-clientrelationship violated the sixth amendment right to effective assistance. Marshank, 777 F. Supp. at 1525. Governmental monitoring of communicationsbetween an attorney and client is also an egregious violation of sixth amendmentrights. See generally People v. Knippenberg, 66 Ill. 2d 276, 285 (1977); seealso Geders v. United States, 425 U.S. 80, 91, 47 L. Ed. 2d 592, 601, 96 S. Ct.1330, 1336-37 (1976) (bar on attorney-client consultation during overnightcourt recess violates sixth amendment right).

As noted above, the sixth amendment analysis in Alvarez has been rejected.See Edney, 425 F. Supp. at 1049; see also Noggle, 706 F.2d at 1413-14. TheNoggle court doubted that the definition of the scope of constitutionalguarantees was properly before the court in Alvarez. Noggle, 706 F.2d at 1413. In Noggle, the court held that, because the defendant had put his sanity at issueby calling psychiatrists to testify that he was insane, the defendant waived thelimited privilege attaching to the testimony of a psychiatrist retained, but notcalled, by the defense. Noggle, 706 F. 2d at 1415. According to the court inNoggle, the balance struck by the implementation of a rule allowing thegovernment to call, in rebuttal, a psychiatrist retained by the defense did nothave constitutional implications. Noggle, 706 F.2d at 1415; see also Nobles, 422U.S. at 233, 45 L. Ed. 2d at 151, 95 S. Ct. at 2168.

Upon consideration of the holding in Noggle, we are not persuaded that thesixth amendment guard against undue interference, as outlined inGedders, Marshank, and Black, necessarily applies to discovery issues regardingexpert witnesses. It would appear to us, for the reasons that follow, that thework product doctrine is the more appropriate basis to protect the Iantoscareport from disclosure than is the sixth amendment right to the effectiveassistance of counsel.

The purpose behind the work product doctrine is to facilitate the flow ofinformation leading to theories and strategies to be employed by the attorney attrial, thus allowing the attorney to prepare for litigation. While the attorney-client privilege may protect certain aspects of a nontestifying, consultingexpert's report, as in Knuckles, other aspects of the expert's report concerncreative and/or intellectual work product that is derived from the expert'smental processes and then shared with the attorney to facilitate the attorney'spreparation for trial. The work product doctrine is somewhat analogous toprotections afforded to intellectual property, which operate to induce theefforts of the scientist or artist. See R. Allen et al., A Positive Theory ofthe Attorney-Client Privilege & the Work Product Doctrine, 19 J. Legal Stud. 359,385 (1990). In the context of the application of the work product doctrine toprotect the reports and potential testimony of nontestifying, consulting experts,it is not only the substance of the expert opinions that is protected but also the fact of the attorney's consultation with the expert and the type ofassistance that the attorney requested.

The application of the work product doctrine provides the attorney thenecessary confidentiality to induce the attorney to undertake certain steps toinvestigate and develop his client's case. See R. Allen et al., A PositiveTheory of the Attorney-Client Privilege & the Work Product Doctrine, 19 J. LegalStud. 359, 362 (1990). Accordingly, the work product doctrine operates toincrease the information available to the trier of fact by encouraging theattorney to seek, on his own, information about the case that he could not obtainfrom his adversary through the discovery process.

We have demonstrated in our case discussion that the work product doctrineis never absolute. A conditional work product privilege, one that permits theState to defeat the privilege by establishing a special need for the expert'sinformation, recognizes the balance between the need to accord protection to workthat is performed on the case at the behest of defense counsel and the need toensure that the trier of fact will be exposed to the relevant facts of the caseand necessary interpretations of the evidence. See generally E. Imwinkelried, TheApplicability of the Attorney-Client Privilege to Non-Testifying Experts:Reestablishing the Boundaries between the Attorney-Client Privilege and the WorkProduct Protection, 68 Wash. U. L.Q. 19, 38 (1990).

It is precisely this need to strike a balance between competing interestsat trial that precludes protecting the reports and potential testimony of anontestifying, consulting expert on sixth amendment grounds. If the protectionwere embodied in constitutional form, it would not be amenable to change by rule,statute, or further case law development. See Edney, 425 F. Supp. at 1054. Courts and legislatures should have reasonable freedom to develop new approachesto issues concerning discovery and testimonial privilege. See Edney, 425 F. Supp. at 1054. We believe that such freedom would be unnecessarily impaired wereour holding to turn on sixth amendment analysis.

Following Walker, we hold that the reports and potential testimony ofnontestifying, consulting experts are protected from disclosure to the Statepursuant to the work product doctrine. The work product doctrine is qualified.Its application is subject to a showing of necessity by the State, and, further,it does not apply to verbatim statements of witnesses, in accordance with Lego. Our decision today attempts to answer some of the questions regarding the scopeof the work product doctrine that were left open in Nobles, Lego, and Boclair I.

This brings us back to the question of how our holding comports withSupreme Court Rules 413(c) and 412(j). As noted above, Rule 413(c) does notexpressly limit disclosures concerning experts to those experts testifying attrial. See 134 Ill. 2d R. 413(c). We further note that the committee commentsare silent as to whether Rule 413(c) applies to nontestifying, consultingexperts. This is in stark contrast to Federal Rule of Criminal Procedure16(b)(B), which is limited to those items and/or witnesses that the defendantintends to present at trial.

More telling, however, is the tremendous disparity between Rule 413(c) andRule 213(g), which governs disclosures concerning expert witnesses in civilcases. Rule 213(g) defines an opinion witness as "a person who will offer anyopinion testimony." 166 Ill. 2d R. 213(g). In civil cases, parties are notentitled to discover the identities or opinions of nontestifying, consultingexperts. See Costa v. Dresser Industries, Inc,, 268 Ill. App. 3d 1 (1994). Indeed, the identity, opinions, and work product of a consultant are discoverableonly upon a showing of "exceptional circumstances under which it is impracticable*** to obtain facts or opinions on the same subject matter by other means." 166Ill. 2d R. 201(b)(3); see also Hickman, 329 U.S. at 512, 91 L. Ed. at 463, 67S. Ct. at 394 ("[T]he general policy against invading the privacy of anattorney's course of preparation is so well recognized and so essential to anorderly working of our system of legal procedure that a burden rests on the onewho would invade that privacy to establish adequate reasons to justify productionthrough a subpoena or court order").

We see no reason why the same would not be true for experts in criminalcases. With the advent of DNA testing and new forensic testing procedures, astrong argument can be made that the need for expert consultation is morecompelling in the criminal context than in the civil. To that end, we do notbelieve that the drafters of Rule 413(c) specifically intended that the reportsof nontestifying, consulting experts fall within its ambit. Therefore, webelieve that the work product doctrine set forth in Rule 412(j) includesmaterials pertaining to or prepared by nontestifying, consulting experts.

Because we hold that the reports and materials prepared by a nontestifying,consulting expert are protected from disclosure to the State by the work productdoctrine, we need not reach Spiezer's argument that disclosure violates Castro'sright to equal protection. Therefore, we turn to resolution of the contemptorder.

As discussed above, the discovery order by the trial court was legallyerroneous. Thus, we must reverse the trial court's finding that Spiezer was indirect civil contempt of court for refusing to comply with the order. SeeMlynarski v. Rush-Presbyterian-St. Luke's Medical Center, 213 Ill. App. 3d 427,430 (1991).

For the foregoing reasons, the judgment of the circuit court of Ogle Countyis reversed.

Reversed.

McLAREN and GALASSO, JJ., concur.