Recent case decisions and rules of evidence generally provide that the information the expert uses to form his opinions may be reviewed through the discovery process. That means that any communication with the attorney, client, witnesses, or other experts, or any part of the expert's investigative lab work process that in any way formulates a basis for his opinion can be viewed and investigated by the opposition.

Another potential issue involving privilege arises when the expert's role begins as a consultant but later changes to the role of testifying or investigative expert witness. In such instances, everything in the expert's files can potentially be discoverable. In civil matters, if at any time the expert's client puts medical, legal, accounting or similar matters into issue, this effectively removes the privilege barrier for any communications the expert has in those areas.

In the best of all worlds, communications between the expert and the retaining attorney should remain confidential, if not absolutely privileged. Whatever the expert says to the attorney would seem to be confidential. Communications from the attorney to the expert should also seem protected. However, they may not be.

Certain communications are, by law, not subject to disclosure. Effort is often made to bring attorney, client and expert communications within that protection. Good reasons exist to justify attempts to restrict access to the expert's preliminary work. Any effort the expert renders as a consultant is distinguishable from that generated as a testifying witness in the setting of confidentiality.       

There are some precautionary steps the expert can take to avoid disclosure. Ethical considerations also must be examined when dealing with these concepts. The discovery process is the setting in which disclosure issues most often arise.

Back Forward