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Practice Tip: Providing Privileged Material to Testifying Experts Can Lead to Nasty Surprises

By Virginia W. Dorsey

Consider this not unimaginable scenario: Opposing counsel calls for production of a confidential memorandum that details your impressions of the case and trial strategies. This is clearly protected as core work product, right? Not necessarily. In fact, if you shared the memo with your testifying expert in a federal court case, the answer is 'probably not.' Perhaps even more troubling is the following situation: On cross-examination, your expert is asked to reveal the content of confidential oral communications between you and your client to which he was privy in his capacity as a testifying expert. Once protected by the virtually impenetrable shroud of the attorney-client privilege, these types of communications also may now be discoverable if the testifying expert 'considered' the information in forming his opinions. See Fed. R. Civ. P. 26(a)(2)(B).

How did all this happen? In 1993, Fed. R. Civ. P. 26 was amended to make information 'considered' by a testifying expert discoverable. The comments to this amendment state that it was intended to overcome privilege claims ' and that is precisely how the federal courts are interpreting this language. Thus, the traditional protection afforded by the core work product (also sometimes referred to as 'opinion work product') and attorney-client privileges has largely given way to a policy favoring mandatory disclosure of information provided to testifying experts. Counsel who interact with their testifying experts without considering the discoverability of what they tell them are risking a nasty surprise.

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