Setting up Expert-Attorney Communication: Privilege
By Noah Bolmer
The rules governing privileged communications between expert witnesses and attorneys are in a constant state of flux. Coupled with variations across jurisdictions, expert witnesses should be aware of which communications are privileged in their current venue, and any exceptions to that privilege. These are general guidelines, subject to interpretation and change. Always consult your attorney for specific instructions relating to discovery and privilege.
Know the Rules
Federal Rule 26 governs privilege and discovery in Federal jurisdictions, states that have adopted the Federal Rules of Civil Procedure (FRCP) generally, and in states with their own rules that nonetheless mimic the Federal standard. Recall that there are two types of experts: consulting and testifying. Under the current revision of Rule 26(a)(2), “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence” (emphasis added) suggesting that testifying witnesses are subject to disclosure, whereas consulting expert communications are privileged, unless presented as evidence. Note that consulting experts who also testify in the case, even on a different subject, may not be immune to disclosure according to a recent ruling.
Economics expert Dr. Michael A. Einhorn explains the distinction:
Acting as a non-testifying in-house economist at the Department of Justice gave me [the opportunity] to work with lawyers where our communications were protected. It is here possible to have detailed conversations with lawyers and parties, hear the ups and downs of the particular case, and offer insights that are not discoverable in a court. The Department of Justice often uses inside work, and then proceeds to hire outside counsel to testify to the soundness of its argument. The DOJ economists often stayed off the witness stand and therefore could maintain privilege.
Attorney-Client Privilege
While expert witnesses who testify in Rule 26 jurisdictions must provide a complete expert witness report, drafts and notes may be attorney-client privileged work-product. In Rule 26, there is currently a three-pronged test to determine whether a document (other than the required report) is privileged:
- Documents and other tangible things [which are]
- Prepared in anticipation of litigation [and]
- Prepared for a party by or for another party or its representative
Dr. Einhorn continues his explanation, referring to a case within Federal jurisdiction:
The attorney-client privilege means that certain communications between the attorney and the expert will not be disclosed to the other side. The only thing the other side gets to see is the materials that the expert relied upon in forming his or her opinion. The other side then is not entitled to see other communications on general matters that did not go into forming the submitted report. It is very important to me to make sure that our communications are protected as much as possible.
This was not always the case, as Rule 26 has undergone significant amendments, with more proposals on the way. Attorney Brian Weinthal believes that experts are now less constrained, enhancing the engagement:
It used to be that any document, any wisp of anything you had, immediately had to be turned over [to] the other side. There is more freedom [now] for attorneys to communicate with experts about theory and what their actual views of a case are. If [attorneys] are not maximizing time with an expert, to explain to them their role, you are letting the best opportunity to sell a persuasive part of your case go by.
Know the Venue
Of course, not all states have adopted the FRCP (or similar rules), so learning the bounds of privilege in your venue is crucial. Expert Charles Ehrlich explains:
[…] 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?” [The notes] may be discoverable and even worse. As soon as you’re 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 [wrote] is now discoverable. A lawyer told me about a time he had to [replace an] 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.
Getting clarification before beginning an engagement is important. He continues, recalling:
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.”
Attorney Stephen Embry agrees, advising experts to take a proactive approach to avoid “privilege traps”:
Jurisdictions and judges vary in how they treat communications between lawyer and expert, but I think the expert needs to understand the litigation process, how it works, and if they want to know what to say, how to say it, and how to communicate it. First, they need to know how things work in the courtroom and depositions. Good experts avoid most of those privileges and confidentiality traps by knowing how it works and understanding the issues. Structuring what they do so they do not get into trouble now. It is a two-way street. Experts need to require the lawyers they are working with to tell them what they need to be doing. Tell us where the traps are and where the problems are. Help us understand how this is going to work. Tell us about the lawyers on the other side.
Exemptions to Privilege
While the controlling law of your case’s jurisdiction addresses the specifics, there are a few typical exemptions to be aware of:
Inadvertent Disclosure: While inadvertent disclosure of privileged materials can sometimes be rectified, it is important to take steps to minimize the risk. Attorneys should have clear procedures for handling privileged materials, and experts should consult them where there is uncertainty. Technology expert Dr. Istvan Jonyer recalls a case where he mistook who the client was:
[W]e were retained by an attorney and the client was the law firm [. . .] [It] did not occur to me until I learned in my deposition that the law firm that retained us was not actually on the case, which means that anything that I discussed with them was not privileged [. . .] That’s an honest mistake. Nobody told me who was on the case [and] who was not on the case. You’re working as an expert witness and you’re talking to attorneys. You’re assuming that the attorneys are on the case, but it turned out that one law firm was simply acting as a client, but it’s—you do this long enough these weird situations will happen.
Crime-Fraud Exception: Privilege may be waived if otherwise protected communications are made in furtherance of a crime or fraud. This usually appears in the context of an end-client and attorney, but if an expert were to collude with an end-client, or tamper with evidence while engaged, the exception could apply.
Attorneys use Privilege Strategically
Attorneys may employ strategies which affect which work product is produced and when, as they usually possess a deep understanding of privilege. It is important to remain vigilant, and produce only what the trial team requests, and importantly, when they request it. Attorney H. Bernard Tisdale advises:
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 [. . .] the case is settled. You don’t need a report [or] 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. [. . .] 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.
Only Write When Necessary
Anything you put in writing may have far-reaching effects, so always get guidance from your attorney first. Opt for phone calls, and verbal communication when possible. Expert Pete Fowler explains his rookie mistake:
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.
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