Confidentiality & Privilege with Expert Witnesses

Preparing an expert requires balancing—on one hand you must give them everything they need to properly assist with creating and telling your client’s story, as well as prepare an unbiased and informative report—while on the other, minimizing any damage that may arise from discovery. Rules vary by jurisdiction, and your experts may not be familiar with the laws in a particular venue.  Thus, what feels like an open and frank email discussion may become a problem. Attorney Brian Weinthal notes:

We cannot silo them. […] If you are not maximizing your time with an expert, to explain to them their role, you are just letting the best opportunity to sell a persuasive part of your case go by. I see people spend tons of time with lay witnesses and go through this cursory analysis with the expert thinking, well, you are an expert, so you should be able to just deliver what it is you are going to deliver persuasively. It cannot work like that. You have to include them as if you are preparing a lay witness. It is the same kind of theory.

However, if your expert is unaware of the rules, they may make some innocent mistakes. Expert Pete Fowler gained a powerful lesson through one of his early missteps:  

I had sent a client a two-page memo saying for us to do our work, you need to send us all these documents. It would have cost the client $10,000 to send us all these documents for a relatively small case. [… The client] called my boss and said, "Who is Pete Fowler?” My boss said, “He is a bright young kid who came to work with me. He is killing it.” The lawyer said, “Fire him now! If this case goes to trial and my client loses and I have not sent you every one of those documents, I am going to get sued for malpractice.” I realized that was a good piece of information. Now when my clients say do not put anything in writing, we understand and train all of our staff what they mean is do not put anything stupid in writing.

Attorney H. Bernard Tisdale suggests some best practices to ensure you and your expert are following confidentiality rules:  

How do you want documents marked that you create, or the expert creates?  How is communication going to be marked? “Attorney-client privilege”, “work product protected”, “confidential”, “personal”? These days, in the era of emails, keywords that can be found in documents and emails make it easy for someone searching to find those words and then mark them as privileged. In a million-document email [environment], the easier you make it to define privileged emails, the better off you’re going to be. I am [vigilant] when it comes to document control. I have my numbering system that tells me when and where I have received a document, then identifying the documents with that numbering system that go to the expert. I can tell when, say, the expert is getting testimony later and pulls up a document. I see the number. I know it came from me and I know how he or she got it. 

He continues:

Billing is also important. Once again, you’re trying to maintain that attorney-client communication. Billing is sent to the attorney with the understanding it can be addressed to the client for payment. That way you are filtering it through the attorney to protect the communication because a lot of bills are going to have time entries and descriptions of activities. All of those activities are done for the attorney providing advice. 

Setting expectations at the beginning of an engagement can save many headaches. Make sure your experts understand confidentiality and privilege from the beginning for smooth sailing as the case moves forward.