Effect of “Inadvertent” Disclosure to a Testifying Expert

February 10, 2010

As explained in last week’s “Privilege Point” (and as will be explored further in next week’s “Privilege Point”), an increasing number of courts have focused on the rules governing inadvertent disclosure of protected documents or communications. Most of those cases involve inadvertent disclosures to adversaries — but courts also consider the effect of a litigant’s inadvertent disclosure to its own testifying expert.

In Garfinkel v. Gerbaz, Civ. A. No. 08-cv-02462-RPM-LTM, 2009 U.S. Dist. LEXIS 119631, at *4 (D. Col. Dec. 2, 2009), the court adopted the majority “bright-line” approach, under which a testifying expert must disclose all documents or communications that he or she “considered” (even if the expert did not rely on them). Under this “bright-line” standard, testifying experts must disclose even privileged and work product documents that they received from the lawyer who hired them. The court applied this unforgiving rule even to protected information “inadvertently” disclosed to the testifying expert. As the court explained it, “information inadvertently disclosed to a parties [sic] expert, thus ringing the bell, cannot be then ‘unrung’.” Id. at *6.

Litigants and their lawyers must carefully control the flow of information to their testifying expert in courts applying this majority rule.