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Expert Witness Confidentiality & Privilege

May 11, 2023
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Preparing your expert requires balancing on a difficult line. You must give them everything they need to properly assist with creating and telling your client’s story, as well as preparing an unbiased and informative report, while minimizing any damage that may arise from discovery. The rules vary by jurisdiction, and your experts may not understand the rules in effect for your particular matter Thus, what feels like an open and frank discussion over email may become a giant problem. On one hand, as attorney Brian Weinthal notes: 

We cannot silo them. […] The new federal rules give more freedom for attorneys to speak and converse with experts than when I started doing this. It used to be that any document, any wisp of anything you had, immediately had to be turned over to an expert and the other side. […] [Now] there is more freedom for attorneys to communicate with experts about theory and about what their actual views of a case are. If you are not maximizing your time with an expert, to explain to them their role, you are just letting the best opportunity to sell a persuasive part of your case go by. I see people spend tons of time with lay witnesses and go through this cursory analysis with the expert thinking, well, you are an expert, so you should be able to just deliver what it is you are going to deliver persuasively. It cannot work like that. You have to include them as if you are preparing a lay witness. It is the same kind of theory.

On the other hand, you need to guard against things going too far and make sure your expert understands the rules before they get into trouble. Expert Charles Ehrlich has a couple of stories: 

[…] Several states have adopted Federal Rule 26, but not everyone. You get into a situation where the lawyer starts talking about the case and you start taking a lot of notes. You start putting a lot of question marks. What about this and what about that? That may be discoverable and even worse. As soon as you are retained, you want to show how smart you are. So, you write a long email about here is what I think about the case. Well, if it is not a Rule 26 jurisdiction, everything you said is now discoverable. A lawyer told me about a time he had to get another expert. He found a great expert and that is exactly what his expert did. He got onto the email, wrote, ‘Here is what I think is great about the case, but I think that this might be a problem and that might be a problem.’ So, the lawyer, after deciding not to jump off a bridge, had to get rid of this expert and find another one. 

Another story I was told was where the expert wrote very disparaging things about the law school which the opposing expert had attended. The problem was it was [also] the judge’s law school. Again, not a Rule 26 jurisdiction. Mutual embarrassment. I have learned that at the absolute start of any discussion with a lawyer to say, ‘What are the confidentiality rules governing our discussion here?’ Sometimes they say, ‘Oh, guys, I had not thought about that.’  

Experts want to do an excellent job. They want to be helpful and to do that they need to understand the basic rules they are operating under. Dr. Michael A. Einhorn explains his process to be forthright and assist as early as possible while still mindful of the potential confidentiality pitfalls: 

It is very important to me to make sure that our communications are protected as much as possible. That allows me to tell the client when I think of a particular argument, where I think it can be trouble down the road. This complication may not seem like the easiest thing to hear at the beginning, but it’s something you need to know when the motions start coming in. Before taking a retainer, I try to review the complaint in public information to let the attorney know everything I see as early as I see it.  

Attorney H. Bernard Tisdale suggests some best practices to make sure you and your expert are following confidentiality rules in all the communications you may have by going through, essentially, a checklist:  

How do you want documents marked that you create, or the expert creates?  How is communication going to be marked? Attorney-client privilege, work product protected, confidential, personal? These days in the era of emails, keywords that can be found in documents and emails, make it easy for someone searching to find those words and then mark them as privileged. In a million-document email [environment], the easier you make it define privileged emails, the better off you’re going to be. I am retentive when it comes to document control. 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. I can tell when, say, the expert is getting testimony later and pulls up a document. I see the number. I know it came from me and I know how he or she got it. 

Billing is also important. Once again, you’re trying to maintain that attorney-client communication. Billing is sent to the attorney with the understanding it can be addressed to the client for payment. That way you are filtering it through the attorney to protect the communication because a lot of bills are going to have time entries and descriptions of activities. All of those activities are done for the attorney providing advice. 

Setting up these expectations at the beginning is key. Expert Pete Fowler tells of his early missteps which taught him a lesson he has never forgotten:  

It is so great that I only learn things the hard way. So, I got that out of my system early by working 80-hour weeks. I remember like it was yesterday, I had sent a client a two-page memo saying for us to do our work, you need to send us all these documents. It would have cost the client $10,000 to send us all these documents for a relatively small case. The client happened to be a superstar young lawyer, who was not much older than me and I was not even 30 at the time. He called my boss and said, ‘Who is Pete Fowler?’ My boss said, ‘He is a bright young kid who came to work with me. He is killing it.’ The lawyer said, ‘Fire him now! If this case goes to trial and my client loses and I have not sent you every one of those documents, I am going to get sued for malpractice.’ I realized that was a good piece of information. Now when my clients say do not put anything in writing, we understand and train all of our staff what they mean is do not put anything stupid in writing.   

We have found that setting expectations around communications, work product, and availability is probably the most important part of ensuring that the engagement with your expert is smooth sailing. Round Table Group is here to help you find experts that are a pleasure to work with. For over 25 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Contact us at 202-908-4500 for more information or start your expert search now.

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