Is the Work of a Consulting, Non-Testifying Expert Subject to Privilege?

Traditionally, attorneys seek the help of expert witnesses when they need an expert to testify to facts or opinions within a particular realm of expertise. Increasingly, however, attorneys are also seeking expert assistance during the discovery phase of complex cases.

These experts, also known as consultants, can serve many purposes during the litigation process. However, attorneys must be aware of the risks that working with these experts may introduce in order to provide the best possible guidance to their clients.

Here, we look at the confidentiality rules surrounding communications between consulting experts and attorneys, focusing on key points that attorneys should bear in mind as they work with a non-retained consulting expert witness during discovery.

Consultants, Work Product, and Confidentiality

A testifying expert witness’s notes, opinions, and work product are all discoverable: opposing counsel can see what your testifying expert is studying, thinking, and planning to say.

By contrast, under Federal Rule of Civil Procedure 26(b)(4)(D)(ii) and in many state courts under analogous rules, opposing counsel cannot discover the work of an expert who is not expected to be called as a witness at trial, unless the opposing side can show “exceptional circumstances” demanding that disclosure.

In United States v. Kovel, 296 F.2d 918 (2d. Cir 1961), the Second Circuit reasoned that Kovel, an accountant and former IRS agent who worked for a law firm, played the role of “translator” for the law firm, helping the attorneys and their client understand the complexities of the federal income tax violations with which the client was accused.

The court said that as a translator, Kovel’s work was “reasonably related” to the attorneys’ work representing their client. Therefore, Kovel’s work ought to be covered by work product privilege. However, the court also said, “If what is sought is not legal advice but only accounting service, or if the advice sought is the accountant’s rather than the lawyer’s, no privilege exists.”

Under Kovel and similar cases, the consultant’s work can often be shielded by the same confidentiality rules that protect attorney work product – but not always. Currently, courts are split as to whether a consultant’s identity must be disclosed during discovery. In some cases, courts have even held that a consultant’s work product may be subject to discovery.

How to Protect Your Consultant From Discovery

Attorneys seeking to work with an expert witness who will consult but not testify have several opportunities to strengthen the argument that their non-testifying expert’s work ought to be protected from discovery.

First, draw a clear line between testifying and non-testifying experts. When an expert is hired only to consult, with no anticipation of taking the stand, their work is more likely to fall under Rule 26(b)(4)(D)’s requirement that opposing counsel show “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.”

Next, know where the limits lie. For example, while Rule 26(b)(4)(C) states that “communications between the party’s attorney and any witness required to provide a report” may be protected work product, the rule also specifies that communications must meet certain requirements in order to receive that protection. Communications that don’t meet the rule’s requirements may still be discoverable. Tracking which communications may be discoverable and keeping them separate from those which are not discoverable can help attorneys ensure critical information from consultants stays out of the hands of opposing counsel.

Also, stay aware of changes in privilege protections. For instance, the 2010 amendments to the Federal Rules of Civil Procedure explicitly limited discovery of draft expert reports, as well as certain types of communications between testifying experts and attorneys. Courts continue to grapple with questions related to these changes, such as what constitutes a draft report and what types of communications are protected by work product privilege.

Finally, explain clearly to the consulting expert what items they should treat as protected or unprotected work product. A fee agreement that specifies its own limitations when it comes to protecting the anonymity or work product of consultants can help clarify matters and reduce conflict during the litigation process.

Why Hire a Non-Testifying Expert to Consult?

Despite the risks in some jurisdictions of the consultant’s name or work being discoverable, the advantages to hiring a consultant outweigh the disadvantages in many cases. A non-testifying expert can help the legal team choose and vet a testifying expert, review the testifying expert’s work to strengthen it against a Daubert challenge, and even participate as a “backup” expert if the testifying expert becomes unable to participate in the trial. By understanding the confidentiality factors applicable to the case, attorneys can choose their consultants to maximize the benefits of their assistance while minimizing potential risks.