Conversation with Expert Witness Protected from Disclosure

Legal Compliance Resource
September 28, 2012 — 1,223 views  

Federal Rule of Civil Procedure provides for the disclosure of information in civil cases. Generally, an attorney must provide certain information to the opposing side as required by rule 26. The information required as well as the information exempted is detailed in rule 26. An attorney is required to turn over information about documents, names and addresses of people with knowledge about the case, a computation of damages with details, evidentiary materials and other information as required by the rules of disclosure. 

One of the things that is exempted from disclosure is an attorney’s work product. Black’s Law Dictionary defines work product as materials prepared by the attorney in anticipation of litigation. This may be conversations, impressions, strategy, memos, correspondence, interviews and other work prepared by the lawyer. 

In the case of expert witnesses who will be consulting or testifying, rule 26 requires the expert to provide certain documents and reports that qualify and validate his expert status. The expert is also required to provide a statement of his or her opinion and the basis for that opinion. The expert is required to provide “facts or data” that were used to form the opinion. 

Prior to December 2010, an expert witness or consultant was required to provide “data and other information” which may have included conversations and impressions between an attorney and the expert. Currently the rule provides for protection against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation including those of the other party’s attorney or consultants. 

The rule of disclosure is sometimes seen as inhibiting an attorney from free and open discussion with experts or consultants who are testifying on behalf of their client. In order for an attorney to protect themselves from disclosure requirements, they may not feel free to fully engage the expert in a wide ranging discussion or conversation related to the case and their client’s needs. The lack of freedom may leave some information undiscovered that would be useful for the attorney and client. The change in the rule that states that the expert must provide disclosure of “facts or data” rather than “data and other information”, combined with Fed.R.Civ.P. 26(b)(3)(A)&(B) providing protection of mental impressions of other representatives, effectively protects the attorney’s work product including conversation with the expert from disclosure. 

Legal Compliance Resource