You speak with an expert witness. You interview a potential expert witness. He took notes. You jot a confirming letter. And then you wake up in a cold sweat over whether communication between an attorney and an expert witness can be discovered by opposing counsel.
The fact that you are worried about this question is a good sign; it means you know what to think about. The unfortunate reality is that there is no one answer to the question, so roll up your sleeves and get down to research.
A 2011 case in Pennsylvania state court is a good illustration of how such a question can arise. The plaintiff, who was physically injured, sought medical treatment from a doctor, who eventually became an expert witness on his behalf.
When opposing counsel conducted discovery of the plaintiff’s medical records with the treating physician (now expert witness), certain records were withheld as not being related to treatment. The plaintiff’s lawyer argued – and initially lost the argument – that written materials generated by and related to any communication between the plaintiff’s lawyer and the treating/expert physician was not discoverable.
The Plaintiff’s lawyer won the argument on appeal to the state’s highest court in an 8-1 en banc decision. The decision represented a substantial change to discovery rules in Pennsylvania.
Certainly, one foundation case to review when you are thinking your way through this topic is Hickman vs. Taylor, 329 U.S. 495 (1947), which speaks to the work-product doctrine. A companion to read is the Federal Rules of Civil Procedure Rule 26, “Duty to Disclose; General Provisions Governing Discovery.”
A practical approach to the subject of discoverable materials when working with an expert witness is to have a clear understanding of all federal and/or state rules that may apply, as well as to read through current cases, particularly any reported cases by your assigned trial judge. Prepare a 1-2 page generic statement that outlines your office policy or preferences for communication with expert witnesses. And, have an early discussion with opposing counsel and even the trial judge on their understanding of how this topic will be handled.
When there is a known hot spot of law that could compromise the confidentiality of trial strategy, witness testimony, or potential evidence, a clear approach that is reduced to writing before materials are created that must be disclosed can be the ounce of prevention that assures a smooth working relationship between you and your expert witness, as well as a smooth presentation at trial.
By: Paloma A. Capanna, Attorney