Lawyer and Testifying Expert Dodge a Bullet

July 11, 2007

Nearly every federal court holds that the disclosure provision of Federal Rule 26(a)(2)(B) (dealing with testifying experts) trumps the heightened opinion work product protection found in Federal Rule 26(b)(3). These courts consider to be “fair game” for discovery all communications between testifying experts and the lawyers who hire them.

In University of Pittsburgh v. Townsend, No. 3:04-cv-291 (Phillips/Shirley), 2007 U.S. Dist. LEXIS 24620, at *13 (E. D. Tenn. Mar. 30, 2007), the court explicitly adopted what most courts call this “‘bright-line rule.'” (Citation omitted.) The court also noted that a lawyer had instructed a testifying expert to destroy e‑mail communications between them. The court did not sanction the lawyer — although it explicitly indicated that the lawyer’s conduct was “improper.” Id. at *14.

Lawyers who deal with testifying experts should not count on every court being so lenient.