Preserving the Attorney-Client Privilege and Work-Production Protections Afforded to Communications with Experts: Be Careful of What You Say and to Whom You Say It

What can be shared with testifying experts? How about consultants? What rules control? Can confidential client communications be shared with a consultant and remain confidential? How about with your testifying expert?

May 1, 2012

A regular client calls with a new matter-a series of tort claims allegedly caused by a defect in its most profitable product. The general counsel tells you that this is a "bet the company" situation and to spare no expense in the defense. Even though suit has not yet been filed, you retain several experts as consultants to assist you in the evaluation and defense of these expected suits. You and your client both provide the experts with factual information via e-mail, and you provide the experts with summaries of interviews you and your staff conducted of company witnesses and other third parties. Suits are filed in federal court, and you and your team of experts continue to work on the defense. You provide the experts with summaries of key depositions, summaries of detailed interviews with the company's employees who designed the product, and your detailed outline of the claims and defenses with annotations to the facts already obtained, as well as the areas where further factual and expert inquiry is required. The deadline for your disclosure of experts approaches, and you decide to designate all of the experts you initially hired as testifying experts except one who remains a nontestifying expert. In response to your disclosure, your adversary serves a request for copies of the complete files of all of your testifying experts, as well as the complete files of the nontestifying expert on the grounds that the nontestifying expert provided information relied on by the others. After taking a deep breath, you consider your options. What do you produce?

Reprinted with permission from The Attorney-Client Privilege in Civil Litigation: Practicing and Defending Confidentiality, Fifth Edition.

2012 © by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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