Among the most important factors in moving ahead in a lawsuit is budget. Even the deepest pockets would rather save a buck than spend a buck. Common sense. But there are times when we rationalize irrationally because of the temptation of short-term thrift. As litigators, we have all experienced clients who are quite vocal and forceful in being frugal with respect to retaining expert witnesses.
Their reasoning seems almost self-evident and inescapable: why employ an outside expert to testify about a company when they already have an employee who already knows the business inside and out, and won’t cost a dime? An outsider will have to spend an inordinate amount of time getting up to speed with respect to the client’s business. While the employee expert can hit the ground running. It’s this logic that oftentimes compels clients to be very forceful and sometimes intransigent when it comes to utilizing internal experts rather than external experts.
Ultimately, the decision is always in the client’s hands. It’s his budget and his risk, and you’re nothing more than a hired gun. He writes your paycheck. If I were confronted with a very obstinate client, the first thing I would do is write a very logical legal analysis providing the relative costs and benefits of each approach. You don’t want to come across as being dismissive of your client’s position. Once again, it’s his money. But don’t forget to incorporate the risk of losing the case. I would urge you to communicate this to your client in writing as well as in person. This way your client has an opportunity to make an informed decision with plenty of time to review the details and to discuss them with other members of his company. And, more importantly, your butt is covered.
The seminal issue is the scope of the discoverable documents. In the federal courts, Rule 26 governs what is and what isn’t discoverable viz. work performed by an expert. Courts have typically interpreted Rule 26 as permitting discovery of all items, inter alia, that were reviewed and relied upon by the expert in forming his opinion. Generally speaking, items reviewed but not relevant to the expert’s testimony are not discoverable. It’s actually more complicated than that, but for our purposes this analysis will suffice.
The problem with utilizing the services of an employee rather than an outside expert is the amount of information that the internal expert is actually relying upon. Who is to say that this employee never “reviewed” certain documents, but because he was familiar with un-reviewed documents in the course of his employment, he was influenced by this “inside information?”
With respect to an outside expert witness, it is merely a matter of record keeping when asked to provide all relevant documents reviewed by the expert. (Note: I will not be covering the question of attorney work product in this blog.) But with respect to the internal expert, no amount of record keeping will be sufficient. There is simply no means of determining what information the internal witness relied upon.
Thus, by using the less expensive option of an internal expert, it is very possible that you will increase exponentially the scope of discoverable documents that would otherwise have been protected. Not only might this negatively impact upon the prosecution or defense of your case, it may even expose your client to additional causes of action and increased damages.
If, for whatever reason, your client insists on the more immediately economical approach, then once again I would urge you to write a memo to your client explaining your strong objection to the decision and the attendant risks. I would also recommend a face-to-face meeting as well.
One other note: this analysis is based upon the current Rule 26 case law. However, not only is that case law fluid, it is also not consistent throughout the circuits. Furthermore, each state will have its own rules and judicial analyses. I would recommend that in writing your letter, you research and cite whatever cases and statutes are relevant to your recommendation.
By: Ian Heller, J.D.