69 The Alabama Lawyer 257 (2008). Protecting Privileges and Confidentiality When Dealing with Experts.

• Author: BY C. ANTHONY GRAFFEO and ERIC J. ARTRIP

The Alabama Lawyer

2008.

69 The Alabama Lawyer 257 (2008).

Protecting Privileges and Confidentiality When Dealing with Experts

Protecting Privileges and Confidentiality When Dealing with ExpertsBY C. ANTHONY GRAFFEO and ERIC J. ARTRIP Lawyers use experts for a variety of reasons: initial case evaluation, advice on drafting discovery requests and, of course, presenting testimony at trial. This article discusses the circumstances under which a party must disclose the name, opinion and correspondence of someone who has provided an expert opinion or consultation in a case and when it is proper to withhold such information.

As a general rule, communications with an expert are not confidential. Ala. R. Civ. P. 26(b)(1) "In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action "; Fed. R. Civ. P. 26(b)(1); State v. Chicago Bridge & Iron Co., 261 So. 2d 882, 885 (Ala. 1972)("There is no privileged communication between an attorney and an employed expert, not a client."). Therefore, the practitioner should carefully consider what to include in communications with experts. Stick to the facts and keep assessments of the case private. Whatever is disclosed to a testifying expert is likely to be discoverable. See e.g. Ex parte Head, 958 So. 2d 860, 869 (Ala. 2006)(attorney-client privilege waived in turning over certain documents to a retained expert.) However, under certain circumstances, communications (along with the expert's identity, opinions and basis for the same) may be withheld from discovery under both the work-product and attorney-client privileges. Consider the following definitions:

1. Testifying Experts - One who provides expert testimony.

a. Retained - A retained expert is one who has agreed to provide expert testimony in exchange for consideration.

b. Unretained - This type of expert has first-hand knowledge about the facts of the case but no party has agreed to pay a fee for her to provide testimony in the case. Examples include treating physicians, investigating police officers and employees of governmental groups (e.g. EPA, OSHA, and the FDA).

2. Consulting Experts - One who is retained or specially employed to give advice or guidance in anticipation of litigation or trial, but who will not testify in the case. There are two special kinds:

a. Connected with Testifying Expert - Where the consultant's factual knowledge and opinions serve as the basis for a testifying expert's testimony.

b. With Firsthand Knowledge of Facts - A consultant in the role of a fact witness if he obtained knowledge of facts firsthand, or outside the consulting role in some manner. For instance, if a consultant actually witnessed the accident at issue in the case, or participated in the development or testing of an allegedly-defective product, he will be treated as a fact witness as to his firsthand knowledge.

Protection under Various Privilege Doctrines

The ability to shield communications and expert-related materials (e.g. the expert's notes, memorandums, reports and correspondence) from discovery normally depends on which of the above rules an expert plays in the case. The strongest of these is the work product doctrine found in Ala. R. Civ. P. 26(b)(3) which protects "disclosures of the mental impressions, conclusions, opinions or legal theories of an attorney" representing a party. Here is how assertion of the work product doctrine privilege typically corresponds with the various categories of experts:

1. Testifying Experts - Full disclosure as per Ala. R. Civ. P. 26(b)(4). But see Ex parte Morris, 530 So. 2d 785, 787 (Ala. 1988)(Expert not required to provide personal tax returns in discovery process.)

a. Retained - If this expert has developed opinions and acquired facts about the case exclusively in anticipation of litigation or trial, then parties are entitled to full...