Can Expert Witnesses Talk About the Case After the Trial?

In many cases, the outcome of a trial hinges on expert testimony, which places a huge importance on the expert witness and their specialized knowledge. After a trial has concluded - especially one with a successful outcome - it may seem reasonable that an expert may want to discuss their experiences or that others may be curious about the expert’s involvement in a case. But is it possible for experts to discuss their past cases once a trial has concluded?

The Legal Framework of an Expert

Per Rule 702 of the Federal Rules of Evidence, an expert’s opinion is only admissible if the witness is “qualified as an expert by knowledge, skill, experience, training or education.” Rule 702, which was amended in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a United States Supreme Court case that developed a non-exhaustive list of factors to consider when admitting expert testimony, codified a list of admissibility requirements:

• the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
• the testimony is based on sufficient facts or data
• the testimony is the product of reliable principles and methods
• the expert has reliably applied the principles and methods to the facts of the case

Although the specific Daubert factors are not codified in Rule 702, Rule 702 was amended broadly enough to allow consideration of any of the factors enumerated in Daubert and its progeny. As a result, courts have shifted their focus away from an expert’s conclusions and onto how an expert reaches their opinion. Because reliability and methodology is emphasized, Rule 702 and Daubert have also given way to more attention being placed on the details of an expert’s process in developing an opinion.

What is Already Disclosed?

Before delving into what an expert can disclose post-trial, it is important to consider what an expert discloses prior to testifying. Under Rule 26 of the Federal Rules of Civil Procedure, expert witnesses that plan to testify must disclose to the opposing party a report previewing the expert’s proposed testimony. The report must contain “all opinions the witness will express and the basis and reasons for them” as well as any exhibits the expert intends to use and information regarding their compensation. As a practical matter, this means that any documents created in preparation for trial might be discoverable by opposing counsel and that courtroom testimony could expose the inner workings of an expert’s methods.

In contrast, a non-testifying expert, also referred to as a consulting expert, is not subject to such requirements and enjoys more confidentiality, as their identities need not be disclosed (at least in some federal circuits).

Ethical and Obligations of Expert Witnesses

Because such a breadth of information is discoverable under the rules governing expert disclosures, it is important to otherwise maintain confidentiality when feasible. All attorneys should have a confidentiality clause in their retainer agreements, specifying that all communications between the expert and attorney are confidential and should not be disclosed by the expert at any point during or after the case is disposed. These clauses also typically provide that the expert will return all materials containing confidential information or protected attorney work product once the litigation is complete.

Even if not explicitly specified in a retainer agreement, experts should maintain post-trial confidentiality pursuant to the ethical rules and professional standards of their industry. Medical experts, for example, should not discuss someone’s medical history or disclose their records. Experts in other industries may come across other sensitive information, such as trade secrets, that should likewise be handled with great care. 

Situations When Disclosure May be Permissible or Required

In light of the disclosure requirements surrounding expert witnesses, as well as the likelihood that their opinions and bases for such opinions may be challenged in court, there is a strong possibility that much of an expert’s opinion will become a matter of public record during trial. Absent a court order sealing a trial transcript or closing the courtroom, an expert’s testimony can be obtained by anyone interested enough in finding it. Likewise, sometimes an expert may be called upon by the court, such as through court order or subpoena, to disclose confidential information in a prior case. 

Breaching Confidentiality

Aside from the above, an expert should refrain from discussing any confidential information of a past case. Not only does such behavior expose the witness to the possibility of legal sanctions and malpractice claims, it also damages the credibility and future employability of the expert.