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
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?
The articles on our Website include some of the publications and papers authored by our attorneys, both before and after they joined our firm. The content of these articles should not be taken as legal advice.
If you are interested in having us represent you, you should call us so we can determine whether the matter is one for which we are willing or able to accept professional responsibility. We will not make this determination by e-mail communication. The telephone numbers and addresses for our offices are listed on this page. We reserve the right to decline any representation. We may be required to decline representation if it would create a conflict of interest with our other clients.
By accepting these terms, you are confirming that you have read and understood this important notice.