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Attorney-Client Privilege and the Non-Reporting Expert Witness

Lawyers may hire expert witnesses for various types of cases, including cases involving employment issues, intellectual property, engineering or a number of other areas. Sometimes these experts have attorney-client privilege with the lawyer representing the client. However, in other cases this privilege may not exist or may be waived.

Expert Witnesses

Expert witnesses are individuals who usually have an extensive knowledge of the subject matter. They may have years of work experience or an extensive education in a certain subject. In some instances, a client may seek to have someone made an expert by having him or her study extensively on the subject. This may be done for ulterior motives, such as trying to prevent an employee from being asked questions that may be detrimental to the business involved in a lawsuit. The client may ultimately decide to call this individual at trial as an expert witness. He or she can then offer the perspective as an expert witness.

Legal Issues Related to Attorney-Client Privilege and Using Non-Reporting

Expert Witnesses

In some cases a lawyer may hire an expert witness for a case who is not a reporting witness. Sometimes this expert
may still testify at a hearing. In some instances the expert witness may be asked to waive his or her attorney-client privilege. In these instances, the court may be asked to rule on whether or not privileged communications must be disclosed. The non-reporting witness may alternatively have the option to withdraw as the non-reporting witness in order to maintain the privilege.

Complications can arise in this context when the expert witness fulfills dual roles. For example, he or she may be someone who is likely to have discoverable information, as defined under federal or state rules of civil procedure. Under the federal guidelines, the party seeking to use the individual as a non-reporting expert witness is required to disclose his or her identity in this manner. The other side may ask that the expert witness disclose an expert report. The court may then be asked to determine whether or not such reports are necessary when the expert was not specifically retained to provide expert testimony. Documents shared between the expert and the lawyer may be discoverable by the opposing party during the discovery process. However, some communications may be protected by this privilege. The scope of the waiver of any attorney-client privilege may be limited in nature or it may be found to be broad by the court. Discovery may encompass materials that were used, generated, seen, reviewed or reflected upon in contemplation of litigation.

Preparation with Expert Witness

Preparation for litigation may not always be protected by the attorney-client privilege. For example, in one case an employer designated an employee as a non-reporting testifying expert witness based on the federal civil procedure rules. At the same time, the employer listed the individual as a fact witness. The employer argued that attorney-client privilege applied during the expert’s deposition and in discovery materials. The defendants filed a motion arguing that the designation of the individual as a non-reporting expert witness waived the attorney-client privilege in reference to materials and communications associated with the employee in connection with what he was testifying about.

The court ruled in favor of the defendants, stating that the attorney-client privilege did not protect the preparation of the employee and expert. The court held that all documents and information given to a testifying expert in connection with his testimony including any communication directly with the lawyer was discoverable by the defendants. The plaintiff in the case was ordered to produce any documents or information that was used by the employee in connection to his testimony and the court held that the plaintiff had to provide everything that the employee was exposed to in preparing his testimony.
The case demonstrates the importance of being prepared to supply documents and information provided to a non-reporting expert witness and knowing that the attorney-client privilege may not be available to protect this information.

Legal Assistance and

Expert Witnesses

Individuals who talk to a lawyer may establish an attorney-client privilege. Some of the people associated with the parties may also be protected by this privilege. However, a lawyer can explain when this privilege applies, when it does not and how it can potentially be waived. An expert witness can also discuss his or her potential role in a case and when the privilege may or may not apply to him or her. An expert witness can provide valuable information during or before a trial based on a number of different areas and industries.

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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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