dissenting.
The majority holds that the trial court erred in allowing the jury to hear highly relevant testimony from *542Myers, a qualified expert. The only reason for its holding is that Myers developed his opinion while working for the side that did not call him as a witness. It does not matter to the majority that Myers based his testimony entirely on the police reports, his measurements at the accident scene, and other generally available information, or that he neither relied on nor revealed any confidential information that he received while he worked for defendant. An expert, in the majority’s view, is a hired gun who must remain forever loyal to the side that originally hired him, not an independent professional whose opinions may have some level of objectivity. The majority’s decision is both contrary to the authorities on which it relies and unnecessarily enshrines in the law some of the most criticized aspects of the use of experts in litigation. Because I believe that the trial court acted within its discretion, I dissent.
It is difficult to determine the precise basis for the majority’s holding. The majority appears to rely on both the attorney-client privilege and the work product doctrine. However, its opinion moves between the two concepts in a way that is difficult to follow. See, e.g., 155 Or App at 531 (states conclusion concerning scope of attorney-client privilege in one paragraph, in next paragraph supports conclusion by cases based on work product doctrine); id. at 535-36 (paragraph begins by referring to the work product doctrine, moves to a case that discusses the attorney-client privilege, and closes with an article and a case on the work product doctrine).1 It appears to rely on an amorphous “privilege” that seems to combine elements of both concepts, and it goes to great length to discuss matters, such as whether an expert’s communication to an attorney is privileged, that are not in dispute.2
*543In this dissent I will treat the attorney-client privilege and the work product doctrine separately, showing that neither justifies the majority’s result. Before doing so, I will emphasize two points that are central to my disagreement with the majority, neither of which it clearly discusses. The first is that the attorney-client privilege covers a communication between Myers and defendant’s former attorney and only the communication; it does not turn the contents of Myers’ mind into the attorney’s property, nor does it necessarily prevent Myers from communicating his conclusions to someone else or disqualify him as a witness for another party. It is the communication that is privileged, not the opinion. In contrast, the majority believes that, once it has decided that Myers’ communication of his opinion to defendant’s attorney was privileged, it has shown that Myers may not express the same opinion as a witness for the prosecution. As I will show, it has omitted a fundamental step from its analysis.
Second, the work product doctrine is primarily a limitation on compelled discovery of attorney work product; the focus is on protecting the attorney’s work. There is no issue of discovery in this case, nor is there any suggestion that Myers’ testimony compromised defendant’s attorney’s work product. In addition, the majority does not discuss the statutory embodiment of the doctrine.
I turn to the relevant facts. While driving his pickup truck, defendant was involved in an accident in which two persons in another vehicle were killed and two others were injured. He was convicted of two counts of criminally negligent homicide, one count of driving under the influence of intoxicants, and two counts of assault in the fourth degree. The crucial factual issue at trial was the cause of the accident, including the proper reconstruction of the physical events that occurred during it. The public defender who originally represented defendant obtained authority to hire Myers, an accident reconstruction engineer, to assist the defense on that subject. The public defender and his investigator went with Myers to the accident site, where they assisted Myers in taking measurements. The public defender passed on to Myers at least one thing that defendant had told *544him. Myers thereafter gave the public defender his conclusions, which apparently were not, as a whole, favorable to the defense. The defense did not call him to testify at the trial.
Before allowing Myers to testify for the prosecution on rebuttal, the court held an evidentiary hearing. At that hearing, the public defender described his contact with Myers and repeated Myers’ explanation of the information that he intended to use in reaching his conclusions:
“Q. * * * Did [Myers] indicate to you what part if at all your communication to him of what your client might have said had played a part in his opinion as to what occurred?
“A. Not in so many words. He said basically he’s going to look at this and he’s going to tell me scientifically what his opinion was as to what happened.
“Q. Based on the physical evidence, not on what someone might have said?
“A. Yeah. He was going to tell me what he—what his opinion based on measurements and things he saw, he was going to tell me, he said good or bad he was going to let me know what it is.” (Emphasis supplied.)
After the hearing, the court allowed Myers to testify on the following conditions: (1) he was not to mention his connection with the public defender or any communicationfrom the public defender; (2) he was not to refer to any statement by defendant or any testimony where defendant was the source of the information; and (3) he was not to discuss any sharing of theories of the case. In his testimony, Myers complied with those conditions, describing conclusions that he had reached as the result of his examination of the physical evidence and of his review of other public information. Neither defendant nor the majority asserts that the public defender’s communications with Myers had the slightest effect on any specific aspect of his testimony.
From these facts, the majority appears to conclude that allowing Myers to testify, under the restrictions that the court imposed and with no specific evidence of prejudice, violates both the attorney-client privilege and the work product doctrine. I would hold that it violates neither the privilege *545nor the doctrine. I begin with the attorney-client privilege, as it is embodied in OEC 503.
OEC 503(2)(b) creates a privilege for communications “[b]etween the client’s lawyer and the lawyer’s representative[.]” OEC 503(1)(e) defines “[Representative of the lawyer” as “one employed to assist the lawyer in the rendition of professional legal services,” excluding a physician making an independent medical examination under ORCP 44. According to the commentary to the evidence code, under that definition an expert who is hired to assist in the planning or conduct of the litigation is a representative of the lawyer, but one who is hired to testify is not. Laird C. Kirkpatrick, Oregon Evidence (3d ed 1996), 209-10, 222-23; see also Dyer v. R.E. Christiansen Trucking, Inc., 118 Or App 320, 329, 848 P2d 104 (1993), rev’d on other grounds 318 Or 391, 868 P2d 1325 (1994) (correspondence with expert before he was asked to testify is privileged under OEC 503(2)(b)).
I agree with the majority that any communications between Myers and the public defender were privileged. That, however, is only the beginning of the analysis. By its express terms, the privilege protects communications between the expert and the lawyer, not the entire contents of the expert’s mind. As the leading commentator on Oregon evidence law explains, “the fact that communications by the expert to the attorney may be privileged does not necessarily mean that the facts learned by the expert are within the privilege or the work product doctrine.” Kirkpatrick at 223. Myers did not testify concerning his communications with the public defender; in compliance with the court’s instructions, he did not mention that he had had any contact with either defendant or any of defendant’s attorneys.
Neither defendant nor the majority refers to any specific point in Myers’ testimony in which Myers relied on, or revealed the contents of, any confidential communication with the public defender or any information that could be traced, directly or indirectly, to defendant. It is not enough to justify excluding Myers’ testimony that he testified concerning the same subject matter for which the public defender had hired him and concerning the same information that he had discussed with the public defender. Information that *546Myers may have given the public defender in a privileged context is not necessarily itself privileged in all other contexts. The privilege applies to communications, not to information. Because Myers testified concerning the same information without relying on or revealing any communication with defendant or the public defender, there was no violation of the privilege.
The majority does not consider the distinction between a privileged communication and the information that is communicated, and it does not accept that information does not become privileged by being the subject of a privileged communication. The majority’s difficulty with those distinctions is obvious in its statement of what it believes the trial court held:
“The trial court concluded that the fact that the opinion was developed for defense counsel and with the assistance of defense counsel was privileged, but the contents of the communication were not privileged.” 155 Or App at 531.
That is not what I would conclude or, so far as I can determine, what the trial court concluded. There is no question that the contents of any communication between Myers and the public defender were privileged; what is not privileged are the contents of Myers’ mind. The fact that Myers said something to defendant’s attorney does not mean that he cannot say the same thing to someone else. Suppose, for example, that Myers had told the attorney, “My opinion is that the accident was the result of your client’s loss of control of his vehicle.” The fact that he made that statement to defendant’s attorney would be privileged in these circumstances. If that opinion were based on a confidential communication from the attorney or from defendant, the opinion itself would also be privileged, because it would derive from privileged information. That conclusion does not end the case, however. It does not prevent Myers from saying, when called by the opposing side, “My opinion, based entirely on the objective evidence, is that the accident was the result of defendant’s loss of control of his vehicle.”
What the majority does not recognize is that there are two steps to the analysis, not just the one that it sees. The first step is to determine whether any communications *547between Myers and the public defender were privileged. The majority and I agree that at least some were; otherwise there would be no issue. The next step is to determine whether Myers relied on or referred to those privileged communications in his testimony. As the public defender’s explanation and Myers’ testimony show, there is no credible argument that it did. The majority neither recognizes the need for, nor discusses, this second crucial step.
The majority’s failure to recognize those things is curious, in part because it discusses at some length a law review article whose thesis is that “one can draw a principled distinction between the client’s communications [to the expert or the attorney] and the rest of the expert’s information,” that “only communications warrant protection,” that “the rest of the expert information in its own right does not qualify under the attorney-client privilege,” and that “[privilege law does not allow parties to suppress all information in their possession.” Edward J. Imwinkelried, The Applicability of the Attorney-Client Privilege to Non-Testifying Experts: Reestablishing the Boundaries Between the Attorney-Client Privilege and the Work Product Protection, 68 Wash U L Q 19,24-25 (1990) (first and third quotations at 24; second and fourth quotations at 25).
Imwinkelried argues that it is indefensible to apply the attorney-client privilege to expert information that comes from sources other than communications from the client, id. at 28-29, and gives an example that is close to this case:
“[S]uppose that a civil or criminal defendant hires an accident reconstruction expert to analyze the design of the stretch of highway where a fatal collision occurred. The defense hopes to establish that the cause of the accident was the highway’s defective design rather than the defendant’s careless driving. After visiting the accident scene and reviewing public highway department engineering records * * *, the accident reconstruction expert forms her opinion. It is inappropriate to apply the attorney-client privilege to her knowledge because the information acquired does not constitute a communication from the client.Id. at 29-30 (citations omitted; emphasis supplied).
Imwinkelried then points out the dangerous public policy results of holding the part of the expert’s information that *548does not involve communications from the attorney or client to be privileged: “By expanding the attorney-client privilege to this extreme, the courts in effect would be allowing one party to place an expert in quarantine. ** * * The courts should not permit one party to corner the market on expert witnesses.” Id. at 32-35 (quotation at 35; citations omitted; emphasis supplied). One would think that the majority would at least consider and respond to these points.
The cases that the majority cites do not involve situations in which the second step is necessary and thus do not help its conclusion. In Brink et ux v. Multnomah County, 224 Or 507, 356 P2d 536 (1960),3 a condemnation case, the question was whether the plaintiff could compel an expert appraiser to testify about the contents of his report to the defendant. The Supreme Court first held that the trial court correctly sustained the objection to the evidence on unrelated grounds. It then discussed the privilege issue as an alternative ground for its decision, noting that a communication from the appraiser to the defendant’s attorney “would fall within the privilege extended to a client for communications with his lawyer[.]” 224 Or at 516. The plaintiffs’ only argument for the admission of the report was that the appraiser prepared it in the regular course of business without reference to an actual or potential lawsuit. The court rejected that view of the facts. It did not consider whether the appraiser could have testified, either voluntarily or under a court order, concerning his opinion, if he did so without reference to the report or to other communications with the defendant’s attorney.4 Brink, thus, involved only the first step of the analysis, *549because the issue was the admissibility of the report, which was itself a communication.
The remaining cases that the majority discusses primarily involve the work product doctrine. Those cases treat the issue as though it were a matter of general common law, with some reference to federal civil rules. However, in Oregon the work product doctrine in a criminal case is statutory, and that is where my analysis must begin. ORS 135.805 to ORS 135.873 provide for discovery in criminal cases; ORS 135.855(1)(a) makes certain material exempt from those discovery requirements:
“Work product, legal research, records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the attorneys, peace officers or their agents in connection with the investigation, prosecution or defense of a criminal action[.]”
The statute does not define work product. The only statutory suggestion of what ORS 135.855(1)(a) might cover is ORCP 36 B(3), which is the civil work product provision. The rule defines its coverage as “trial preparation materials” and applies to “documents and tangible things * * * prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative^]” (Emphasis supplied.) It does not apply to the in-court testimony of a qualified witness. That definition, and that scope of coverage, are generally consistent with the work product cases that the majority cites.
There are two obvious aspects of ORS 135.855(1)(a), neither of which the majority mentions.5 First, the statute has nothing to do the admissibility of evidence at trial or the qualifications of a trial witness. It is an exception to rules concerning pretrial discovery. That is also true of the common-law work product cases on which the majority relies, an aspect of those cases that it also fails to mention. Second, the focus of the statute is on protecting “the opinions, theories or conclusions of the attorneys, peace officers or their agents in *550connection with the investigation, prosecution or defense of a criminal action.” Myers’ testimony neither revealed nor threatened to reveal any of those things.
The statutory protection of work product does not directly apply to Myers’ testimony. The issue in this case is not the pretrial discovery of a document or other tangible thing, such as an expert’s report.6 Rather, it is whether an expert witness may testify at trial about his opinions on a matter in issue. The only way that the work product doctrine might apply is if Myers’ trial testimony intruded into those things that the work product doctrine protects, particularly the attorney’s trial preparation and strategy. There is no basis for concluding that it did so, in part because of the limitations that the court imposed, in part because Myers’ opinion was itself not based on work product, and impart because Myers had already disclosed his opinion to the prosecution. Although Myers may have developed his opinion while working for the public defender, he made it clear from the beginning that he would base his conclusions on his independent evaluation of the facts, not on communications from defendant or his attorney. Myers’ opinions were not the public defender’s work product, nor were they affected by it.
In discussing the work product doctrine, the majority again fails to distinguish between the content of a communication to the attorney and the independent contents of the expert’s mind. The leading federal cases that it discusses, Hickman v. Taylor, 329 US 495, 67 S Ct 385, 91 L Ed 451 (1947), and United States v. Nobles, 422 US 225, 95 S Ct 2160, 45 L Ed 2d 141 (1975), concern the compelled disclosure of written investigatory reports of interviews with witnesses, prepared by either the attorney or the attorney’s investigator. Those cases have nothing to do with whether a defense expert is a competent witness for the prosecution when the prosecution has properly learned of the expert’s existence and knowledge. As the Supreme Court noted in Nielsen v. Brown, 232 Or 426, 435-36 and n 3, 374 P2d 896 (1962), the *551purpose of the work product doctrine is to protect the attorney’s trial preparation materials, not the expert’s opinion. The United States Supreme Court held in Nobles that trial preparation materials include things prepared on behalf of the attorney, 422 US at 239 n 13; Nielsen makes it clear that things prepared on behalf of the attorney do not include the independent testimony of an expert’s opinion.
Nielsen is the first significant Oregon discussion of the work product doctrine. In that case, the issue was whether the plaintiff could require a physician who had examined her on behalf of the defendant to testify concerning the examination. The court first held that doing so did not violate the attorney-client privilege. 232 Or at 431-33. It then examined whether the physician’s opinions were work product of the defendant’s attorney. It noted that the issue before it did not involve requiring the production of an expert’s report; rather, it was whether the opposing party could call • the expert as a witness and compel him to express an opinion on a subject within his professional knowledge. It held that the “case does not involve the work product rule,” 232 Or at 435, and quoted a California court’s statement that in Hickman the material sought came entirely from the attorney’s files. It then cited the same court’s holding that an expert engineer had to give a pretrial deposition in which he would describe his conclusions and quoted the California court’s explanation:
“ ‘In our case it is the thought, research and effort of Cheek [the witness] which is sought by plaintiff. Although defense counsel may have exercised ingenuity in determining that “slipperiness” of the walk could be tested, this is not enough, as we read Hickman, to make the examination and tests of Cheek the work product of counsel.’ ”Id. at 436, quoting Grand Lake Drive In v. Superior Court, 179 Cal App 2d 122, 129, 3 Cal Rptr 621 (1960).
The court then held in Nielsen that “the mere fact that the doctor is compensated for his services by the defendant does not suffice to make him unavailable as a witness for the plaintiff.” Id. at 444. Although the court stated that it was not expressing an opinion as to the correct rule when the testimony is that of an appraiser, engineer, or similar expert, id., it clearly signaled the direction that it would have taken:
*552“Neither the Hickman case nor any other that we have seen is authority for the proposition that the information and knowledge in the mind of the expert must be kept there and away from the jury on the theory that they are the work product of the lawyer.” Id. at 437.
The Supreme Court thus understands the distinction between the expert’s communications to the attorney and the expert’s opinions that is completely missing from the majority’s opinion.7 Nielsen comes close to resolving this case against the majority’s result.
Defendant relies heavily on State v. Bockorny, 125 Or App 479, 866 P2d 1230 (1993), on recons 126 Or App 504, 869 P2d 349, rev den 319 Or 150 (1994), whose facts are in some respects similar to those in this case. In Bockorny, a murder case, the defendant called an expert to testify concerning whether material on a pair of scissors was blood. Before the expert’s testimony for the defense, the prosecutor had talked with him about that issue and had also asked him questions about the test that the state had used to determine the presence of sperm in the victim’s mouth. The expert thereafter asked to examine the relevant slides and concluded that they contained two sperm heads.
The prosecutor decided to call the expert in rebuttal to testify concerning the validity of the test for sperm. The expert had discussed the longevity of sperm and the presence of sperm heads on the slides with the defense, but he had not discussed the method of testing for sperm. The court allowed the expert to testify concerning stain methods, slide preparation, the specific test that the state had used, and related matters. He did not give an opinion on whether the slides contained sperm heads. In his closing argument, the prosecutor emphasized that the defendant’s own expert had said that the test was valid. 125 Or App at 483-85. We held that, because there was no evidence that the defense retained the expert on the issue of biological staining or discussed it with *553him, his testimony was neither within the attorney-client privilege nor work product. We recognized that, “if an expert is willing to give opinions to both sides, a litigant can be placed in a difficult, if not impossible, situation at trial. However, it is not a situation prohibited by law.” 125 Or App at 486.
Defendant argues that the foundation of our decision in Bockorny was that the defendant had not retained the expert on the subject about which he testified for the state. In this case, in contrast, Myers’ testimony was on the precise issue for which the public defender retained him. From that distinction defendant concludes that Myers’ testimony was inadmissible. Defendant misses the essential point of Bockorny, which is that the expert’s testimony was not based on attorney-client communications or work product. In Bockorny, the fact that the expert had not consulted with the defense on the subject of his testimony satisfied that requirement. That does not mean that there is no other way to make that essential showing. In this case both the public defender’s testimony before Myers testified and Myers’ testimony itself show that Myers did not rely on attorney-client or work product material.
I recognize that one side using the other’s expert may create a difficult situation for the side that originally hired the expert. If anything, that difficulty was greater in Bockorny than in this case, because in Bockorny the defendant had made the expert his own witness before the prosecution called him, a fact that the prosecutor used effectively in his closing argument. However, in both Bockorny and this case the trial courts established clear and appropriate restrictions before allowing the expert to testify, and the expert complied with those restrictions. We held that the court did not err in Bockorny, and the majority fails to explain why we should not reach the same conclusion here. Because its decision erroneously confuses the attorney-client privilege and the work product doctrine and erroneously expands them beyond their purposes and beyond their statutory limits, I dissent.
Deits, C. J., and Edmonds and Armstrong, JJ., join in this dissent.The strangest example of the majority’s confusion is its suggestion that the work product doctrine and the attorney-client privilege are so interrelated that OEC 503 contains aspects of both. 155 Or App at 531-32 n 1.1 am not aware of any other case that suggests that the legislature’s careful review and codification of the attorney-client privilege also involves work product issues, nor am I aware of anything in the text of the rule to support that suggestion. My discussion of the two concepts in the rest of this opinion explains why the majority is simply wrong on this point.
The majority’s reasoning might be clearer if it followed the better practice and referred to the work product doctrine, distinguishing it from the attorney-client privilege. Then, at least, we could tell which concept it was discussing. See Stumpf v. Continental Casualty Co., 102 Or App 302, 311-12, 794 P2d 1228 (1990), for an example of that usage.
It is not clear whether the majority considers Brink et ux v. Multnomah County, 224 Or 507, 356 P2d 536 (1960), to be relevant to its discussion of the work product doctrine. The Supreme Court expressly did not reach the work product issue, treating the case as involving only the attorney-client privilege. 224 Or at 518-19.
In State v. Moore, 45 Or App 837, 609 P2d 866 (1980), the court order appointing the expert psychiatrist expressly provided that part of his work was to be done for the sole use and benefit of the defense. The basis for our decision was that the psychiatrist, therefore, was an agent of the attorney who acted as a link between the attorney and the client. 45 Or App at 841-42. In those circumstances, the psychiatrist did not have any nonprivileged information about which he could testify. It is hard to see how a psychiatrist could give an opinion of the results of a psychiatric examination without relying on or revealing communications from the defendant. Moore, thus, fails the second step of the analysis.
The majority’s only reference to ORS 135.855(1)(a) is a passing mention in a footnote in the portion of the opinion that discusses harmless error. 155 Or App at 540 n 3.
Defendant does not assert that the prosecution learned of Myers’ work for the defense through any violation of the discovery rules or other impropriety. Indeed, the public defender was one source of the prosecution’s information.
The other cases that the majority discusses do not affect our analysis. For example, the discussion in United States ex rel Edney v. Smith, 425 F Supp 1038, 1047-49 (EDNY 1976), aff'd 556 F2d 556 (2d Cir), cert den 431 US 958 (1977), is pure dictum, as the court’s holding was that the Sixth Amendment did not prevent a psychiatrist who had examined the petitioner, at his attorney’s request, from testifying for the prosecution.