November 07, 2005

Experts have become almost as common as attorneys in commercial litigation. Oftentimes, these experts become integral parts of a legal team, offering not only opinions but insights into the strategic direction of the case. This close relationship raises the question, “Can confidential information be shared with an expert who will be testifying at the eventual trial?”

I. Expert Communications and the Attorney-Client Privilege.

Generally, disclosure of confidential information to a testifying expert witness will waive the attorney-client privilege as to any information shared.1 A limited exception to this rule has been noted to exist where an expert is retained solely for the purpose of putting confidential information into a form that is usable by the attorney.2

II. The Work-Product Doctrine and Expert Witnesses.

The more difficult question relating to expert witnesses is whether an expert witness can be required to testify about communications or information that would otherwise be subject to protection under the work-product doctrine.

Disclosure of information shared with experts is governed by Federal Rule of Civil Procedure 26(a)(2)(B), which requires experts to submit reports detailing their opinions. Among the information that is required to be disclosed in an expert’s report is “the data or information considered by the witness in forming the opinions.”3 On its face, this rule seems to require experts to disclose all information considered, whether or not it is otherwise privileged protected work product.

On the other hand, the Federal Rules themselves provide protection for work product materials. Indeed, that protection is provided by another section of Rule 26, which allows discovery of work-product materials, “only upon a showing that the party seeking discovery has a substantial need of the materials” and cannot obtain them elsewhere “without undue hardship.”4 Thus, practitioners are left with a tension created within Rule 26 itself. On one hand, it seems to require disclosure of all materials shared with expert witnesses. On the other, it provides protection for materials prepared in anticipation of litigation or for trial.

In interpreting the meaning of Rule 26, some courts have adopted a bright-line rule that requires disclosure of all materials that are disclosed to expert witnesses.5 Other courts have held that disclosure to an expert witness does not waive work-product protection, at least with regard to core work product materials.6 Additionally, at least one court has taken a compromise approach, holding that communications between attorneys and expert witnesses are generally entitled to work product protection but that protection may be waived where there is evidence that counsel has acted to influence or alter the expert’s opinion.7

If a waiver is found, it may extend to material that is unrelated to the expert’s expected testimony. This issue most often arises when an individual, who has been designated to testify as an expert on certain topics, serves as a non-testifying consultant on other subjects.8 In such cases it may be possible to preserve work product protection for material that has no relation to an expert’s areas of testimony; however, if there is any ambiguity about whether information relates to the expert’s expected testimony, the information must be disclosed.9 For example, in Construction Industry Services Corp. v. Hanover Insurance Co.,10 the defendant, prior to the filing of the lawsuit, consulted with an outside accountant/business consultant about the strength of the potential claims. When suit was filed, the same accountant was designated as defendant’s damages expert. Despite noting that liability and damages were separate issues and that the documents relating to the expert’s earlier evaluation of potential liability had “little if anything” to do with damages, the court ordered all documents the expert had reviewed disclosed because the defendant was unable to clearly demonstrate that the expert “could not have, on some level” considered the liability-related information while acting as an expert on damages.11

The various court opinions requiring disclosure of communications with expert witnesses continue to support the rule of thumb used by many counsel: what is disclosed to a testifying expert is discoverable by the opposing party. Where that rule is not so easily applied because key experts need to wear multiple “hats” over the course of litigation, counsel should carefully review and consider relevant precedent in the court in question prior to utilizing a testifying expert as a consultant on separate, confidential issues.

For more information, contact Michael Farrell at (734) 214-7658 or [email protected].

1 In re Pioneer Hi-Bred International, 238 F.3d 1370, 1375 (Fed. Cir. 2001).
2 United States Postal Service v. Phelps Dodge Refining Corp., 852 F.Supp. 156 161 (E.D.N.Y. 1994).
3 Fed. R. Civ. P. 26(a)(2)(B).
4 Fed. R. Civ. P. 26(b)(3).
5 See, e.g., TV-3, Inc. v. Royal Ins. Co. of America, 193 F.R.D. 490, 491-92 (S.D. Miss. 2000).
6 See, e.g., Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 293-94 (W.D. Mich. 1995).
7 Kennedy v. Baptist Memorial Hosp. Booneville, Inc., 179 F.R.D. 520, 522 (N.D. Miss. 1998).
8 See, e.g., B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, Inc., 171 F.R.D. 57 (S.D.N.Y. 1997); Construction Industry
Services Corp. v. Hanover Ins. Co., 206 F.R.D. 43 (E.D.N.Y. 2002).
9 B.C.F., supra, 171 F.R.D. at 62.
10 See, footnote 9.