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Are Expert Witness Communications with a Lawyer Considered Attorney Work Product?

Communications, drafting, reviews and expert reports may all consist of attorney work product, but this could depend on a few different factors and may affect lawyer and client privilege. Knowing what work product protections cover may help the those involved understand better everything that may remain safe between the professional confines.

Communicating with an expert is important for a case. Additionally, open and quick communications between the two parties are crucial in a case where the processes move swiftly. Knowing when it is best to use a different method of contact may prevent breaking product protection and privilege in these matters. It is essential to know which experts will testify and which will only help with the case. This may differ in the claim where one expert may only use his or her knowledge and expertise to perform tests and may only provide a report instead of testifying in the courtroom at any point.

Privilege Issues in Flux

When communicating and using an expert for a case, it is important to know that privilege issues are constantly changing. Amendments to the Federal Rule of Civil Procedure 26 happened in 2010 that altered how the attorney and client privilege
or work protection for product with a testifying expert may occur. This changed draft experts that provide a report in a case where one is necessary such as a criminal event. These amendments also altered the communications and privilege of a testifying expert with the legal counsel. Knowing what these mean is important for the lawyer as well as the expert witness even if he or she does not testify in the courtroom.

The Attorney Work Product and the Expert

The work product rules prevent another legal party from taking advantage of using materials prepared for or by a lawyer in the course of a legal investigation. This is especially important for litigation purposes, and if the resources become found during the initial processes, they are not usable against the legal party. This is crucial for experts that provide testing, reports and details about the case for a lawyer. The professional’s investigation and procedures into the subject matter are not subject to use by the other legal team unless it is with a cross-examination. This may involve communications, written materials and contact with the expert.

There are some circumstances where the opposing legal counsel may compel the expert to disclose his or her work product if there is a substantial necessity in the case or if the claim experiences an undue hardship without the work product. However, in general situations, the communications, reports and analysis of an expert may remain protected under the work product rules. If the expert and lawyer are communicating about the case, most of the information is private unless the opposing legal counsel uses some form of surveillance, and this would generally remain inadmissible. Both lawyers must follow the law and ensure adherence to the rules of the courts.

The Complications in Attorney Work Product

Because privilege in the work product and what items receive protects are changing based on necessary updates, it is not always clear what will remain work product. However, the primary concern is the understanding of Rule 26 protection. This relates to the communications between the expert or other witness and the lawyer even if he or she provides only a report. This is work product protected against use by the other lawyer in the case as long as the communication has an association with the compensation the expert’s study or testimony will provide to the professional.

The other connected items that may constitute work product include facts, data and details the lawyer provides as well as other materials the expert will use in forming his or her opinions. This also includes any assumptions between the two parties when forming opinions that the expert or the lawyer may present in the courtroom. However, other communications between the lawyer involved in the claim and the professional may remain subject to disclosure at any point. Knowing what Rule 26 means and how it may protect the contact is essential in keeping such details private.

The Expert and the Lawyer Communicating

To ensure that the lawyer’s communications with the expert remain work product only, contact may need to take place in person more than over the phone or through messaging applications. Additionally, it is crucial to keep the contact on a professional level at all times.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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