There are certain actions the expert can take to help maintain and uphold the rules of confidentiality or privilege:

• Limit the distribution of written communications.
• Hold written communications to an absolute minimum.
• Mark written communications "Confidential" or "Attorney Work Product," if that is really the case.
• Attempt to keep the attorney involved in the communication so that it is indeed the attorney's thought process and work product that are being discussed.
• Have the attorney give the expert summaries of the data rather than the basic data that would otherwise be confidential. That may make the item an attorney work product.
• Segregate confidential and privileged communications in the expert's case file rather than merging them with his general materials.
• Make sure the expert's communication with the attorney responds to the attorney's request for information.
• Protect trade secrets or patent information as confidential.
• Obtain a protective order to suppress the information and make it unavailable for any purpose other than the subject litigation, if the information involves competitive information.
• Attempt to show that production of documents or other items is too burdensome or constitutes an act of harassment.

Facts and information should not be given to an expert unless there is some specific reason for doing so. Always consider how a skillful cross-examiner might use a piece of information.

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