Are Non-Testifying Witnesses Protected by Attorney-Client Privilege?

In addition to the use of expert witness testimony at deposition and trial, many attorneys work with “consulting” experts who do not testify. Because the consulting expert’s participation and opinions can have a significant effect on the outcome of the case, it’s important to understand how attorney-client privilege rules apply even when an expert will not be asked to provide testimony.

Privilege and Consulting Witnesses: General Guidelines

Many lawyers remember being cautioned, as a first-year associate, that “anything you say to an expert is discoverable.” In addition, experts – even non-testifying experts – are third parties to the attorney-client relationship. The combination of these two facts often leads lawyers to presume that communications with consulting experts are not protected by privilege rules and are subject to discovery.

In practice, however, many courts have held that attorney-client privilege generally works to protect communications between the attorney and consultants when:

1. The communication occurs for the purposes of obtaining or dispensing legal advice, and
2. The non-testifying expert is understood to be working as an agent of either the client or the attorney.

See, e.g., U.S. v. Kovel, 296 F.2d 918, 922 (2nd Cir. 1961); Golden Trade v. Lee Ansrael Co., 143 F.R.D. 514, 518 (S.D.N.Y. 1992).

In addition, Federal Rule of Civil Procedure 26(b)(4)(D) distinguishes between testifying and non-testifying expert witnesses by indicating that facts or opinions from the latter are discoverable only upon a showing of “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” These communications may still be discoverable, however, if the other party can show “substantial need” for the materials, per Rule 26(b)(3)(A)(ii).

Because Rule 26 protections for work product shared with non-testifying experts are more stringent than protections involving testifying experts, it is worthwhile to distinguish between testifying and non-testifying experts early in the investigation and discovery process.

Exceptions to the Rule: What is the Information For?

Although communications with consulting experts are generally protected by attorney-client privilege, a number of exceptions exist. For example, if the expert, an attorney, or the client disclose the expert’s opinion to a third party who lacks a common legal interest, a court may hold that the privilege no longer applies. (The privilege may still apply, however, if the information is disclosed to a third party who is also assisting with the case.)

Questions about whether consulting experts’ information is protected may also focus on what the information is and what it is for. Expert opinions rendered to help an attorney understand the case and provide better legal advice may receive stronger protection than mere facts.

Consider the court’s opinion in U.S. Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156 (E.D.N.Y. 1994). The case involved alleged failures by Phelps Dodge to clean up toxic waste on a property the company sold to the U.S. Postal Service, in violation of the terms of the sale agreement.

During discovery, both Phelps Dodge and the USPS withheld various documents, citing attorney-client privilege. Several of these documents included facts or information gathered by consulting experts, whom the parties claimed should be included under the attorney-client privilege.

The Phelps court stated that an expert’s communications may not be protected by attorney-client privilege when the expert’s purpose was “to collect information not obtainable directly from defendants.” The court also held that when an expert’s opinions are based on data the expert collected independently, rather than on information received from the attorney or client, the resulting opinions are not protected by attorney-client privilege – because once the expert is doing his or her own research, that expert is no longer acting as an “agent” of the client or the attorney.

Protecting Non-Testifying Experts: Key Points

The current state of case law and procedural rules governing non-testifying experts suggests several points for attorneys to consider when seeking to protect or exert attorney-client privilege over communications with these experts:

1. Specify as early as possible that the expert will not be testifying, but is working in a consulting capacity only.
2. Limit the use of consulting experts to seeking information for the purpose of providing legal advice.
3. Focus the consulting experts’ attention on the facts of the case and specific opinions that can be drawn from those facts.
4. Maintain confidentiality surrounding communications with the expert and with the client. Remind both experts and clients of the need to keep information confidential.

Generally speaking, attorneys will be able to protect a consulting expert’s work product by establishing that the information is provided to the attorney for the purposes of providing legal advice and by maintaining strict confidentiality procedures around the work itself.