Chapter 49 Disclosure of Work Product to and by Experts

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 49

DISCLOSURE OF WORK PRODUCT TO AND BY EXPERTS

49.1 INTRODUCTION

Disclosure of work product to and by experts involves more complicated analyses than in the attorney-client privilege context.

49.2 DISCLOSURE TO NON-TESTIFYING EXPERTS

Disclosure to non-testifying experts generally does not waive work product protection. General work product waiver principles prevent waivers in that context.

49.3 DISCLOSURE BY NON-TESTIFYING EXPERTS

Disclosure by non-testifying experts involves more subtle issues. [49.301]

• Although non-testifying experts' materials do not technically deserve work product protection, ¹ their immunity parallels work product protection.

Disclosure by non-testifying experts to testifying experts generally requires disclosure of the same materials to adversaries. [49.302]

Litigants' reliance on non-testifying experts' opinions to gain some litigation advantage usually waives work product protection. [49.303]

In contrast, non-testifying experts' disclosure to third parties might or might not waive work product protection. [49.304]

• Courts disagree about whether the federal rule protection for non-testifying experts' materials can even be waived..

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• Most courts hold that non-testifying experts' disclosure does not result in a subject matter waiver.

49.4 NON-TESTIFYING EXPERTS PLAYING MULTIPLE ROLES

Disclosure to non-testifying experts playing multiple roles in the same case raises complicated waiver issues, which are discussed below. ²

49.5 TESTIFYING EXPERTS' DOCUMENTS AND COMMUNICATIONS

Under relatively recent changes to the federal rules, work product protection can extend to testifying experts' documents and communications with litigants' lawyers (unless the communications provided facts such testifying experts considered in forming their opinions). ³

49.6 FACT WORK PRODUCT DISCLOSED TO...