Communications with your Expert: Overcoming Discovery Hurdles
By Kluger Kaplan November 1, 2012
By Alan J. Kluger
It is standard practice in Florida (and most jurisdictions) to issue a subpoena duces tecum when deposing an opponent’s expert witness, in order to obtain the documents that the expert relied upon in forming his or her opinion. Florida’s Rules of Civil Procedure permit a party to obtain discovery to ascertain the basis for an expert witnesses opinion. This could include communications between you, the lawyer, and the expert.
So how do you communicate with your expert witness to be sure that you are not inadvertently disclosing privileged information?
First, it is good practice to limit your written communications to your expert witness, unless absolutely necessary. Think twice before shooting a cavalier email to your client’s expert and ask yourself – if this had to be produced in discovery, how would it impact my case?
Second, it is important that you are not relying on your client’s expert to teach you the material. For example, if you hire an expert in building foundations to determine if a building foundation was laid properly, do not rely on the expert to teach you everything about how foundations are built and the types of defects that may occur. Instead, familiarize yourself with the basics and meet with your expert to deal with the specific target issues in your case and disclose only the information necessary for the expert to do his or her job. Depending on the complexity of the issues, it may be necessary to hire a consulting expert who will not be testifying at trial. Generally, a non-testifying expert’s reports are not discoverable, so that expert’s assistance can be a valuable tool to help understand a particular industry. Absent of a showing of “good cause” a non-testifying expert’s opinions and emails are not subject to expert disclosure rules.
These basic practice tips will help you communicate with your expert to best serve your client while also recognizing that communications with the expert may be produced in discovery.