Privilege and confidentiality in the expert witness context is a very nuanced topic. While there is a general perspective on these sorts of issues, the rules can be unique to jurisdiction. In order to delve deeper into this topic, we spoke with H. Bernard Tisdale, III on a recent episode of our podcast, Engaging Experts. Bernard is the managing principal at the Charlotte office of Jackson Lewis and is Round Table Group’s resident expert on the topic of expert witness privilege and confidentiality.
Both attorneys and experts should be aware of proven best practices that optimize work and ensure that their work product is covered under the attorney-client privilege doctrine. “For starters, you are going to need an engagement letter between the attorney and the expert that is going to set forth the terms of the engagement. The bigger role is to start creating that attorney-client communication funnel,” explains Bernard. This engagement letter establishes expectations, and speaks to whether additional individuals will be utilized, or if additional services will be provided. Bernard continues, “My preference would be that those individuals be identified in the engagement letter and possible those individuals sign off on the confidentially structure that the attorney engaging the expert wants to pursue.”
Bernard recommends that attorneys find out everything they can about their expert, including recommendations, their history, their specific experience, etc. “You are going to create a folder on your computer or desk, and everything related to the expert goes in that folder. It is not shared with anyone else. You put it under lock and key to maintain that confidentiality.”
It benefits attorneys to make it easy to define privileged emails. Bernard explains, “I have my numbering system that tells me when and where I have received a document. Then identifying the documents with that numbering system that go to the expert. When the expert is giving testimony later and pulls up the document, I see the number. I know it came from me and I know how he or she got it.”
When it comes to privilege and confidentiality, there must also be a lot of attention on what kind of documents the expert needs to create. Bernard goes on to explain, “The expert and the attorney need to talk about when exactly a report is needed and when it is prepared. Sometimes you find the expert just wants your opinion and the case is settled. You don’t need a report. It also minimizes what might get discovered should the attorney-client privilege or work product doctrine privilege get pierced by a court at some point.”
This open communication is critical at every step of the process. “You don’t want your expert acting without the attorney’s knowledge. In a lot of situations, you need to understand what the expert is doing, so that the expert does not take action you do not know about or need to talk to others about,” continues Bernard.
Bernard summarizes, “Before any attorney engages an expert, figure out what the law is in their jurisdiction, what they can and cannot do with the expert. What information can they feed the expert? Under what circumstances are they going to be able to protect that information? The more arguments that you can make that are protected via attorney-client privilege, the better you are going to be able to protect the work of that expert.”
There are many ways to ensure privilege and confidentiality and ensure that information is protected when necessary. We recommend that experts and attorneys interested in this topic take a listen to our conversation with Bernard Tisdale on our podcast Engaging Experts. We were honored to speak with Bernard on our podcast, and hope that you find our conversation most informative.
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