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Privilege and Confidentiality in the Expert Witness Context

February 9, 2021

In this episode…

For many lawyers, the knowledge of an expert witness can make or break a case. So, how exactly should you go about communicating with an expert witness in a way that is privileged, confidential, and protects their valuable insights?

H. Bernard Tisdale has been practicing employment law for over 25 years. During this time, he has covered a wide variety of cases—including those focused on employee safety and health—that have required the insight of an expert witness. In these cases, confidentiality and privilege are essential for protecting the expert’s work and, ultimately, winning the case. But, with varying rules around attorney-client privilege and work-product protection, how do you maintain confidentiality while still getting the most out of your relationship?

H. Bernard Tisdale, the Office Managing Principal at Jackson Lewis P.C., joins Russ Rosenzweig in this episode of Engaging Experts to talk about the nuances of privilege and confidentiality in the expert witness context. Bernard discusses his experience working with expert witnesses in his employment law practice, his recommendations for both experts and lawyers on how to protect privileged documents, and his insight into what is considered confidential during the litigation process. Stay tuned for more!

Episode Transcript:

Note: Transcript has been lightly edited for clarity. 

Guest: H. Bernard Tisdale, III, Managing Principal, Jackson Lewis

Host: Russ Rosenzweig, CEO and Co-Founder, Round Table Group  

Introduction: Welcome to Engaging Experts,the podcast that goes behind the scenes with influential attorneys. Our guests will describe their practice and expertise. Then, we will go deep on various topics related to effectively using expert witnesses.   

Russ Rosenzweig:  Hi, this is Russ Rosenzweig. I am the CEO and one of the Co-Founders of Round Table Group, and also the host of this podcast series, Engaging Experts. We have a great guest for you today. Bernard Tisdale is the managing principal at the Charlotte office of Jackson Lewis. [He is] our resident expert on the topic of privilege and confidentiality in the expert witness context and a fellow aficionado on the nuances of Southern barbecue cuisine.

Bernard Tisdale: Yes.

Russ Rosenzweig:  Before we dive in Bernard, let’s have a quick message from our sponsor.

Announcer: This episode is brought to you by Round Table Group, the Experts on Experts®. We’ve been connecting attorneys with experts for over 25 years. Find out more at roundtablegroup.com.

Russ Rosenzweig: Bernard, welcome. Let’s start.

Bernard Tisdale: It is good to be here Russ. Thanks.

Russ Rosenzweig: Glad you could be here, and I would love to start with just a bit about your unique background. You went to Clemson to study chemical engineering, worked subsequently as a nuclear engineer, and then went to law school. How did that happen? How has your engineering training influenced your practice of the law?

Bernard Tisdale: It was more falling into things as opposed to any great plan. In high school I was good at math and chemistry. Chemical engineering, I had heard, was the hardest degree at Clemson. Okay, I will do that. Then I graduated during the recession in the early 80s and you could not buy a job. I knew the recruiter at the shipyard in Charleston and joined the nuclear engineering department for three years, knowing that I most likely would be going back to school at some point. An ex-girlfriend suggested law school, and the rest, as they say, is history. With engineering, you are able to get a definitive answer a lot of the time down to the nth degree. In law there is no answer. It is all gray. I do not know that my engineering degree prepared me in that regard. It did teach me how to work for hours on end, which came in handy in the field of law.

Russ Rosenzweig: Let’s talk about how you are spending some of those hours on end these days because many of our listeners are fellow business owners and executives. They are constantly needing to engage counsel. Tell us a bit about your practice these days, what you are focused on, and a little about the Charlotte office.

Bernard Tisdale: I just started the Jackson Lewis Charlotte office. I had been with a major competitor for several years. I have been practicing employment law since 1995. I practiced with an insurance defense firm doing anything from car wrecks to multidistrict litigation over product liability. Much of my practice focuses on employee safety and health. I do a good bit of OSHA compliance along with the associated ADA, FMLA, Workers Compensation. Everything that goes into workplace safety and health.

Russ Rosenzweig: That is an increasingly important topic these days and will be even more so post-pandemic. Bernard, this is an expert witness focused podcast. I am a little curious about how often you need to engage expert witnesses during your practice. What do you do when you need experts?

Bernard Tisdale: For starters, it is going to depend on the type of litigation that I am performing. In employment law, it is not often that I will have to retain an expert. If I do, it will be a human resources practitioner or an expert in economic damages. I had a case many years ago where options were a key point of damages and I had to find someone that could find the present value of a future set of options. When I need an expert, it tends to be a unique situation, especially with some of the employee safety and health work that I do. I have retained experts with expertise in metallurgy, and in specific fields of medicine, specifically expertise in industrial hygiene. I have done a lot of work in the area of Legionella with a few clients where I have needed some experts in that regard. You can have various subsets of expertise in any of these areas. The key is finding the right expert with the right knowledge for what I need. Typically, I have been looking for someone who is an expert with a unique subset of knowledge. You are always looking to play the game of “my expert is better than yours.” I have one with excellent credentials in the field that you are concerned with which will play well in getting a resolution to the case and will play better in front of a jury. That is the realm that I am hiring expert witnesses in.

Russ Rosenzweig: I think we have had the privilege of working together over the years on a few occasions in an expert witness recommendation context.

Bernard Tisdale: You have.

Russ Rosenzweig: When is it better to use someone like Round Table Group versus finding experts on your own?

Bernard Tisdale: Typically, I have found I can find generic experts through contacts within the firm. That HR expert or an economic damages expert or someone that is an expert in pay practices. When it comes to employee safety and health, or in the construction field, I have to step outside the confines of my firm and find someone with a unique skill set. I cannot do that as an attorney outside counsel without the assistance of an expert witness search service.  I have gone to Round Table Group several times trying to find that unique set of expertise.

Russ Rosenzweig: How did we do?

Bernard Tisdale: You did well. You did well. Nobody is going to have access to everybody, but the process that you utilized allowed me to find that unique expert. That is key.

Russ Rosenzweig: It is always a privilege to work with you and Jackson Lewis, and speaking of privilege, I am not sure if you know this or not, but you have been a great educator to us on this topic of privilege and confidentiality in the expert witness context. Many of our listeners are peer attorneys of yours, and our beloved expert witnesses. I thought we can chat for a few minutes about some of the nuances of privilege in the expert witness context. Maybe you can start with what is it? Why is it important? What should experts be aware of when they are contacted by an attorney or by a firm like Round Table Group about a matter?

Bernard Tisdale: One caveat, one disclaimer to the entire discussion. The rules on privilege, attorney-client privilege work product protection, can be unique to jurisdiction. In general, the practices we are going to talk about are fairly uniform. But it is always the nuance that is going to get you. Take what I say and then go research it.

When retaining an expert, you have two concepts. The attorney-client privilege, which is communication-based to and from an attorney for the attorney providing advice. Now that is important in some context where an entity has tried to use a lawyer to protect the work of an outside consultant where there is no anticipation of litigation for work product, and it is not being done for the attorney to advise the client. That relationship can be attacked, and the courts can pierce that privilege. It failed to get at whatever was being talked about in those communications. That is kind of a word of warning to attorneys and experts. Make sure that it is enforced in some way to advise the client.  Work product is work that is being done in anticipation of litigation. That can be in varying degrees. Russ, you asked me for an example when we were getting ready for this discussion. One of the areas that an employer may need to hire an expert is in the evaluation of their pay system. Are we equitably paying our people in the various categories of jobs? Not being discriminatory, or not having a disparate impact on any demographic group? That is an area that has increased over the last 10 years and it is going to continue to increase. You are possibly not in anticipation of litigation. It could depend. You might have somebody that has made a complaint, so you might have a colorable argument that is done in anticipation of litigation, but your best protection is going to be that attorney-client communication to provide advice to the client. All the communication is going to have to be through the attorney and not to the client.

Russ Rosenzweig: Just to clarify, [let’s say] one of my beloved business owner executive peers decides to have a thorough and rigorous study of the pay practices at their company to ensure equity and fairness, which is a good thing these days. It should be done. They do it outside the scope of legal counsel and call me to hire an expert consultant to conduct that analysis, then find it is deeply flawed, and that there are problems with the pay practices that are discoverable in any future litigation. If they are working with you and your team, and you hire the expert in the context of preventing concerns about possible litigation, then it is privileged and confidential. Do I have it right?

Bernard Tisdale: Yes. I am not going to say you would be correct 100% of the time, but in that scenario where you do not have a claim or in anticipation of litigation, you are not going to have work product protection. Without an attorney, you are not going to have attorney-client communication.

Russ Rosenzweig: It is interesting to me because doing it without their attorney may have started as a goodwill inquiry gesture. We want to make sure everything is fair, but it could backfire and turn into serious litigation. But with the guidance and under the tutoring of the legal team it both accomplishes the purpose and is preventative, perfectly confidential, and can never be used against them in a court of law. Did I hear it right?

Bernard Tisdale: That is the end goal. Trying not to have it used as a sword against you by going through an attorney and having the attorney engage the expert in providing advice to the client. It also allows your business to correct the issue at a reasonable pace. Say, for example, somebody finds out about this study and it is not privileged. If you haven’t done anything about it or they found out how long the problem has been in existence, damages start going up quickly. Lots of people find out about it, and it is just bad, so you need fix it on your terms.

Russ Rosenzweig: Now, I have seen over 27 years in the expert witness business. Often, experts are engaged, early on in a consultative context other than in a testifying role. Sometimes in the employment context. As an example, there might be concerns of theft of intellectual property. That is a concern of several my peers who are running high tech companies when an employee leaves. They are contemplating retaining counsel on the plaintiff side, assessing the likelihood of theft, etc., and engaging experts in that context. Nothing has been filed, just due diligence and a thorough, rigorous fact-finding process. Is that privileged?

Bernard Tisdale: In the scenario that you have, if you have no inkling that this individual stole anything, you might not have that in intense anticipation of litigation protection. However, going through an attorney can at least give you some protection and the advice would be, do you have a claim against this individual who left? What are the laws concerning the theft of intellectual property in whatever jurisdiction you are in? Yes, you can protect and depending on the jurisdiction, you should be able to protect that kind of investigation.

Russ Rosenzweig: Sounds like the common thread here, Bernard, is the phrase materials prepared in anticipation of litigation. Would you say that’s right? That is the key metric.

Bernard Tisdale: That is one aspect of it, Russ, but a lot of the times like we mentioned with this pay disparity issue. You might not have that anticipation of litigation. That is where it becomes all the more imperative to hire counsel to engage the expert and pass the expert’s work through the attorney to the client, advising the client on what to do. The providing advice aspect, I think, can be a hoop to jump through that is fairly easy if you are hiring the right counsel in the right area of law, or maybe outside counsel that has been working with you for an extended period of time. You have that relationship of providing advice. You should be able to protect it.

Russ Rosenzweig: Good. Let’s talk about some best practices that attorneys and experts themselves should be aware of just to optimize and ensure their work product is covered under the attorney-client privilege doctrine.

Bernard Tisdale: You are taking it in the context of best practices. We are going to be taking it in the context of trying to take into account the work product doctrine along with attorney-client privilege. Keep in mind are you going to want this expert at some point to testify for you, or not. There is a procedure and practices that you can take advantage of for someone to be a non-testifying expert. You are going to follow many of the same processes concerning engagement and it is more on the attorney side on how to handle it there within a piece of litigation, so the best practices we are going to talk about would apply to testifying, or non-testifying. It is good for the attorney and the expert to know the result. What are we working toward with your expert?

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, for lack of a better term. The engagement letter needs to set out what the attorney’s expectations are. Is the expert going to be utilizing other individuals? They maybe with an expert witness company. Many engineers provide investigative services and testimony services. Who is going to be engaged? My preference would be that those individuals be identified in the engagement letter and possibly those individuals sign off on the confidentiality structure that the attorney engaging the expert wants to pursue. In that regard, attorneys find out about your expert. Get recommendations. Understand their history. Are they experienced in this area? Are they not? Many times, your experts are not going to have experience in the litigation process, and you are going to have to create a folder on your computer or your desk that is called the “Smith Litigation.” Everything goes in that folder. It is not shared with anyone else. You put it under lock and key. You are maintaining that confidentiality. Everything you do to maintain confidentiality is a good thing.

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 to make it easy for someone searching to find those words and then mark them as privileged. In million document email production, 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.

Russ Rosenzweig: Right.

Bernard Tisdale: Billing is also important. Once again, you’re trying to maintain that attorney-client communication. Billing is sent to the attorney with 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.

Russ Rosenzweig: Right.

Bernard Tisdale: Another big issue is going to be what kind of documents the expert needs to create. Granted experts evaluating or reviewing a bunch of documents, or examining the piece of machinery a widget maker, are you going to have to prepare a report? 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. You do not need to pay for it. 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. If you’ve already prepared a report, then it gets discovered. Talk about it in terms of if the expert is going to have access to, say, original data or the widget-maker that failed. You do not 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. Keep open communication every step of the way.

Russ Rosenzweig: Now, let’s say, Bernard, that we are following this to the letter. We have an expert witness that listened to your podcast, and they are under the tutelage of a skilled lawyer. They are following all these practices, and they have their proper folder, attorney-client privileged work product folder, and the case is moving along. At some point, the opposing counsel says, “Hey, we want to see your expert’s work product.” How much of what’s in that folder can opposing counsel see?

Bernard Tisdale: If the individual is not going to be testifying and they can get the information in other ways, they’re not going to see it. Now, if they are going to be testifying, they are going to get a look at everything. Be polite and no side commentaries on what you see or hear because somebody else is going to look at it. In some situations, an expert might be able to develop knowledge and after that knowledge is developed, it cannot be recreated. [For instance, consider] a widget-maker that gets destroyed by a hurricane. In those situations, a motion [could be made] by the other side and they are going to be able to look at the expert’s information because it cannot be obtained anywhere else.

Russ Rosenzweig: Well, I guess I have a clarifying question. What is the purpose of going through all this hullabaloo around attorney-client protection and privilege work product for your testifying experts if the opposing counsel can just see everything anyway?

Bernard Tisdale: You have the ability to make the decision that you do not want the person to testify. I try to hire the best experts who are going to tell me if my theory holds water. If it doesn’t hold water, guess what? I am going to pay that expert and classify them as non-testifying. The other side is not getting it unless they have developed some type of information that cannot be duplicated.

Russ Rosenzweig: Our expert does a lot of work, research, analysis and presents a report that is not to your liking. It helps you hone, refine and perfect your legal strategy, but it is not something that you want to present as your testifying expert. In that case, it was good that we were to the letter of the privilege and confidentiality best practices. Now, you are not going to designate that expert as a testifying expert. You have the benefit of his or her knowledge and everything is protected. Do I have the gist of it?

Bernard Tisdale: You bring up another good point, especially when it comes to drafting reports. It becomes a fine dance between the lawyer and the expert on the lawyer imposing himself on the expert’s drafting.

Russ Rosenzweig: How important is it for you to babysit and police the drafting of the expert’s report versus just letting them do their thing?

Bernard Tisdale: I think you are also at the same time trying to see what your opinion is going to be in your report. If I don’t like your opinion, I’m not going to get you to write a report. If I like your opinion, walking through the drafting can also assist the lawyer in determining if there are holes in the argument. Does the expert have the correct facts? Does the expert understand the situation? Or is he pointing out things I do not understand, and I need to figure out. To the extent that you can break the process down with your expert to layers and individual baby steps, the better off you are going to be with a result that supports your position or stopping at a point where you figure out it is not going to support your position and you need to stop work. It can be a delicate dance.

Russ Rosenzweig: I want to cover one more nuanced topic. We have been thorough here about confidentiality and privilege in what I would call the post retention space of the expert witness process. Round Table Group is in this unusual space of pre-retention work. It took us 27 years, but now every day we have dozens of requests from your peers for help with expert witness recommendations. One thing, we pride ourselves on here at Round Table Group, is being thorough and rigorous about that expert recommendation process. We have discussions with counsel about what the ideal expert looks like. Often, we are reading complaints and patents. If it’s an IP case, sometimes we are asked to do due diligence and run the basic case facts by experts and assess if they are qualified and interested. Typically, we are on the interview with the expert and client. Round Table Group is on those calls because we learn a lot and can often help hone, refine, and perfect any future search work that needs to be done. Out of curiosity is that pre-retention work considered privileged?

Bernard Tisdale: I have not researched this one. I think it could be possible. I would want to engage Round Table Group or any expert search firm to locate an expert, and they would be communicating with me directly. I have engaged you and I am going to be paying you a fee to advise me on folks that are out there. Conceptually, I can see a good argument to protect that relationship. I would want to be careful, though. I think you are starting to dance a little on the edge. Especially depending on the jurisdiction. Most lawyers are going to know you only feed the expert common facts. Facts that are easily identified and are not going to be in dispute as you start going down the road of expert retention, and you want to find somebody that has that narrow set of experience. Then you start getting down into the nitty-gritty to determine what that opinion is. At some point, the lawyer needs to decide. Do I want to go ahead and write an engagement letter with this expert? You may not use them, but you protected yourself, protected your client and the communications you have with that individual. Like I said, I have not researched the issue. I think it could be possible, but the attorney needs to take steps in protecting the client by formally engaging whatever group is going to be making that search.

Russ Rosenzweig:   Thanks for going out on a limb. Good disclaimer. Let me just ask, any other nuances or details on the topic of privilege and work product in the expert witness context that you care to share?

Bernard Tisdale: I think we have given the basic rules of the engagement and the construct for engaging experts. 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? After they figure that out, being meticulous in how they engage someone to provide them with expert advice so they can advise their client. It is all on a sliding scale. It’s not engineering anymore; it is all law. The more arguments that you can make that I protected this via the attorney-client privilege, the better off you are going to be able to protect the work of that expert. Unless and until you want to open the floodgates and allow everybody to see his or her work.

Russ Rosenzweig:  Excellent point Bernard, thank you so much. For my final question, is there anything you care to share with our listeners regarding the nuances of Southern barbecue cuisine and your favorite Charlotte [restaurant]?

Bernard Tisdale: I was working with a fella at the Charleston Naval Shipyard many years ago and he came to me and said, “Bernard, I am an expert on barbecue.” And I said, “Oh, really?” He told me there was a place in Virginia Beach, Virginia that had the best barbecue known to mankind. I said, “Wow, I’m just going to have to go there. Is it mustard-based, ketchup-based, or vinegar-based?” He went “Huh?”  He was no expert. Now being from the South, it is pork. It is not brisket. In certain parts of the South, it is going to be fighting words to call anything other than chopped pork barbecue. Up in Lexington, you are going to have a vinegar-based sauce. Down in South Carolina, you are going to have a mustard-based sauce. Ketchup-based sauce is everywhere. My favorite spot is a little restaurant on Wade Hampton Boulevard right outside of downtown Greenville. I cannot remember the name of the place. Good stuff.

Russ Rosenzweig: That is a good enticement for any of our listeners who would like to connect with you about any of these expert witness related privilege concepts, and as a bonus, they can get the name of your favorite restaurant. So how do our listeners reach you if they want to reach out to you to discuss further?

Bernard Tisdale: We will talk barbecue. I am easily Googleable. Jackson Lewis is a national labor and employment law firm across the country. My email address is bernard.tisdale@jacksonlewis.com or you can find me on our website, jacksonlewis.com.

Russ Rosenzweig: Great. That’s Tisdale, Bernard, thank you for being our honored guest. Bernard Tisdale ladies and gentlemen. Thanks again. Cheers.

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Go behind the scenes with influential attorneys as we go deep on various topics related to effectively using expert witnesses.

Privilege and Confidentiality in the Expert Witness Context

H. Bernard Tisdale, III, Jackson Lewis

H. Bernard Tisdale, III is the Office Managing Principal of the Charlotte branch at Jackson Lewis P.C., one of the country's premier labor and employment law firms. Bernard started his career in nuclear engineering before shifting his focus to employment law in 1995. Today, he focuses a large portion of his practice on workplace health and safety. At Jackson Lewis P.C., Bernard advises clients on workplace fatalities, catastrophic accidents, OSHA inspections, and more.