What Expert Communications are Protected Before the Lawsuit is Filed
I'm often asked whether communications with expert witnesses, before a lawsuit is filed, are protected. A corollary to this question is whether to obtain a written report from the expert or a verbal report. Also, is the report (written or verbal) subject to production in the subsequent lawsuit.
Our claim customers deal with different states, each of which have unique rules and procedures for dealing with these sensitive communications. The concern often raised is that these opinions are formed so early in a dispute that not all of the facts or evidence is known and that the final report may look significantly different from the preliminary report. Thus, if it has to be produced in litigation, what is the best form of that preliminary report - written v. verbal.
Another concern may be that the expert's opinion isn't helpful to either a liability or a damage issue in the claim. Thus, if an opinion that hurts a defense position is subject to disclosure, do you obtain a written report or do you just rely on the verbal opinions expressed over the phone?
These are tough questions, but we're here to help you work through the issues and to make sure all confidential communications stay protected. The answers to these questions, or the best way to handle them, is something to call us and discuss before making any decisions. Our involvement early is the safest way to protect the communication/opinions.
Whatever the specific concern, fortunately, the Utah Supreme Court makes these questions somewhat easier to analyze. The first thing to analyze is whether the expert/communication is obtained "in anticipation of litigation".
U.R.C.P. 26(b)(5) and (7) provide guidance. If the expert or consultant is hired and working "in anticipation of litigation or for trial", the other side can only obtain their thoughts and impressions upon a showing of "substantial need of the materials and that the party is unable without undue hardship to obtain substantially equivalent materials by other means." U.R.C.P. 26(b)(5).
Thus, the key in pre-litigation matters is (and always has been) whether the material was prepared in anticipation of litigation or for trial. If so, the general rule is that it is not subject to production. This is where we come in. A consult with defense counsel, with proper file documentation, that the expert opinion is sought in anticipation of the filing of a lawsuit, likely brings this matter within the scope of the protection. This is best practice.
U.R.C.P. 26(b)(7)(A), (B) and (C) elaborate on this rule. Specifically, preliminary drafts of reports, communications with the party's attorney are not subject to production. Like all legal rules, there are exceptions and they are spelled out in the rule. They are protected unless (1) the communication is related exclusively to compensation, (2) it contains the facts and data the attorney provided to the expert, (3) or the communication contained assumptions that the attorney provided to the expert and that the expert relied upon. If an expert is retained solely for trial and is not expected to testify, the other side cannot obtain his/her facts known and opinions held.
Thus, so long as it's done correctly, much of what we provide to consulting experts is not subject to production. The key, therefore, is to do it properly.
Best Practice: Get us involved early, have us work with the expert and facilitate the communications. The more the attorney is involved, the more likely the communications will be protected.