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Does Privilege Apply to Expert Witness Research?

The aspect of lawyer and client privilege and what the expert can expect in a case may depend if he or she is a designated expert witness or a consultant only researching matters and helping the lawyer hire another expert witness. Keeping research non-discoverable is important in certain litigation claims or criminal investigations.

The Consultant and Research

The expert that only works behind the scenes of a case is usually a consultant when he or she will not testify about anything in
the courtroom. This professional is usually part of the investigation, testing and results as well as other matters that are important in the case. However, other issues such as discoverability of research and even privilege may have little to do with this expert. Some may need to understand what this means better when applied to a professional that will testify in the courtroom at some point for the lawyer or the client.

Privilege in the Case

In regards to the client, the expert witness that researches for the case often also must apply privilege to his or her actions when revealing details. The expert cannot disclose info to another party without getting consent from the client.
In these relationships, this can extend to the lawyer as well. Without first clearing the matter with the lawyer or the client, the expert may need to remain quiet about something in the case. This stops the professional from discussing details to another professional or a different lawyer.

The Lawyer in Privilege with an Expert Witness

It is often up to the lawyer to determine if privilege is a problem with an expert witness. If there is any possibility of a disclosure of case details to someone else, the lawyer may need to make all reasonable attempts to stop the action. The legal professional has an obligation to the client in keeping matters confidential even if the expert is only researching matters. His or her communications can become a problem without the lawyer’s intervention. With the details and representation of the client, the lawyer must ensure that the expert does not reveal data about the case that can harm the client in any way.

Privilege and Limits

There are limits placed on the lawyer in what he or she can say and how. It is imperative to only provide the expert witness with information that he or she will need to research the matter and not, in the process, make this person a witness for the other legal team. When the client did something that can lead to a criminal investigation, the lawyer may need to ensure these details are confidential and not given to the expert. However, the professional hired for the case may need more info to research the matter. This can complicate the investigation.

The Expert’s Purpose in the Case

It is crucial in regards to privilege if the expert’s research, discussions and communications apply with this concept. Any information exchanged between expert and lawyer involving facts that the expert or legal professional disclose could suffer limitations because of privilege when the lawyer must protect the information regarding the client. When it does apply, the expert and lawyer may need to restrict information exchanged. However, these limits often do not apply to research and data obtained from researching a subject unless it could detrimentally affect the client. At that point, the lawyer may need to immediately determine how to safeguard the client from possible consequences.

Facts disclosed by the client may create conflict and possible problems when the lawyer needs to explain something to the expert witness. This can also depend on the purpose the expert has in the case, what he or she will perform for the legal team and if the expert witness will testify at a later date. If the professional’s purpose is to support the lawyer through research, advice and helping to hire an expert to testify, he or she may not suffer under the same limitations of privilege. The research usually helps the legal team to better understand the problems in the case and how to apply testimony of an expert in the courtroom.

The Expert and Privilege

In many situations, the expert does not experience the same restrictions of privilege if he or she researches matters. Even if the expert will testify later, his or her research may not suffer these limitations because the information garnered through research may only have a slight bearing on the case rather than impact the client.

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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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