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June 16, 2021 Practice Points

Confidential or Not? Don’t Let Your Expert Blow Up—or Blow Up Your Case

If you’re an expert talking to a lawyer, before you begin, find out what rules govern discovery in your case.

By Charles Ehrlich

After much searching, Bill Robertson found the perfect expert. (The persons and events described are fictional. The author advocates compliance with all pertinent rules.)

Professor Skarzynsky was “the authority” on the complex manufacturing process behind the tragic explosion for which Bill’s client was being sued left and right.

Even better, on their Zoom call together, Skarzynsky was charming. Completely at ease, his explanations of complex concepts were straightforward and understandable. He wasn’t at all pompous or overbearing. Bill was in heaven.

After excitedly telling the client about his great find, Bill disclosed the professor as his expert.

The only challenge was that Skarzynsky proved to be a genuine nitpicker, and somewhat oblivious to the real world. The initial drafts of his report were full of digressions about how the client could, in a perfect world, have done things better. And his favorable opinions were teeming with qualifications and hedges. The real world and the ivory tower weren’t meshing well.

After a lot of agony and sleepless nights, Bill managed to get an acceptable report that Skarzynsky agreed to sign. It wasn’t all that Bill had hoped for, but Bill’s cajoling had paid off.

Fast-forward to the professor’s deposition. Opposing counsel asks whether there are any drafts of the report. Before Bill can object, Skarzynsky says, “yes, of course, I have them here in my briefcase.” Almost choking, Bill croaks, “counsel, you can’t see those; they’re protected.”

“Oh really,” responds Belinda Big-Verdict, “how so?”

“Everyone knows that expert’s drafts are not discoverable. Federal Rule of Civil Procedure 26 26(a)(4)(B) is clear: ‘(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.’”

Belinda smiles: “I know you BigLaw defense lawyers live in federal court but we’re not there now. Our state courts don’t have Rule 26, and here’s an excellent discussion from the magazine Plaintiff that our chief judge cites regularly in ordering disclosure of drafts. Let’s call the judge; you’re toast.

“Oh, but one more question first, professor, do you have any notes in your file?”

Bill’s day is about to get much worse.

Skarzynsky has reviewed depositions of the clients’ key witnesses, and added comments—assisted by a fine single-barrel bourbon for inspiration. “What a dope” is a mild way to put it.

Protected from disclosure? Federal Rule 26 would be a safe harbor—but Bill is out on the ocean with torn sails.

The Moral of the Story

If you’re a lawyer hiring an expert, make sure you’ve nailed down the actual rules that govern discovery in your case. And tell any potential expert what the rules are before you talk about anything else.

(Beware that in arbitration, there may not be any rules at all.)

If you’re an expert talking to a lawyer, before you write a single sentence, find out what rules govern discovery in your case.

Better safe than sorry.

Charles Ehrlich is an insurance expert witness in the San Francisco Bay Area.

Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).