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Research by Expert Witnesses - Is It Discoverable by the Opposing Party?

Litigation can protect an expert witness that acts either as a consultant or someone that works in the background of a case through research, reports and testing of evidence with the case materials. The research may remain confidential even with discovery rules depending on the specific situation and the information involved in this process.

The Type of Expert Witness

Some experts become an intrinsic part of a case through testing materials, explaining results, creating reports and testifying in the courtroom. Others are professionals that assist with the case but never set foot in the court because they do everything in the background. As a consultant, much of the research and assessment of facts can remain confidential because the professional does not take part in testifying about anything within the case. This expert can also help hire another expert to testify. This expert can also testify if necessary in the future when using the same materials.

Discovery Rules

The rules regarding the expert may depend on whether he or she will testify in the courtroom or not. If the expert does not testify in the case, all his or her work products, notes, research and opinions about the
materials in the case are not discoverable. However, the counterpart that does testify is subject to the discovery rule with all the same materials. This connection has a specific rule attached through the Federal Rules of Civil Procedure. The research and assessments performed by a non-testifying expert are no longer subject to the analysis of opposing legal counsel.

The Federal Rules of Civil Procedure

It is per the Federal Rules that a lawyer and expert will know what to expect. The opposing legal party has no access to the materials, opinions, research and testing that a non-testifying expert performs for the case. The lawyer may have access and an explanation to these processes, but the other legal professional usually does not unless the non-testifying expert becomes a testifying expert because the other professional did not work out. With these details confidential, the consulting expert can assist the legal team without exposing what is happening in the background. This is also a work-product privilege that the lawyer can take advantage of in similar situations.

The Consultant’s Identity

The work product in the case that a consultant has is not discoverable, but there are arguments about disclosing his or her identity to the opposing legal team. There are no federal rules that address this matter. Additionally, discovery can require disclosure of materials in exceptional circumstances depending on the case. However, absent these, the rule will usually hold true. The identity may reveal some of what is happening behind the scenes with the legal team. The expert may still assist in finding another expert to testify about the same materials in the case.

Maintaining Confidentiality

Depending on what the expert and lawyer want to accomplish initially and how much the budget can stretch, it is possible to have one as a consultant and another expert to provide testimony while keeping all details about the case confidential until the time the lawyer will start presenting the argument in the courtroom. For litigation purposes, this is a great boon to the legal team because the opposing lawyer may not have any information about what the expert researched or what he or she tested during the first stage of the case.

It is often vital to keep certain aspects of the claim under secrecy. By ensuring that the research and testing are not discoverable with the opposing legal team, the lawyer and expert can increase chances of confidentiality within the case. Even if the expert’s identity is discoverable, this may only give an indication of what the legal team could perform with the case rather than exactly what the expert and lawyer are researching. Then, when another expert testifies, the lawyer and professional hired can support the case and seek certain legal remedies with a better chance of success. The research into the materials and evidence are usually crucial to help prove liability, who owes damages based on liability and if there are multiple parties attached to the claim.

The Research Process

The expert will need to focus and research matters connected to the case. He or she will provide the information to the lawyer and explain any confusing details. This professional can then continue working on testing methods and understanding results without interference in the standard situation where these materials are not discoverable.

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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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