Work Product Protections For "Dual Purpose" Experts

The 1993 amendments to Federal Rule of Civil Procedure 26 expanded the scope of discovery to include all materials "considered by" testifying experts, and most federal courts hold that this includes even core attorney work product that has been shared with the testifier. A troubling newer development is that some federal courts have expanded discovery into work product of non-testifying experts who, in addition to working with attorneys, may also assist testifying experts in preparing their opinions. In certain circumstances, federal courts have ordered such "dual purpose" non-testifying experts themselves to be deposed directly about their roles.

This is a significant concern for litigants. Many consulting firms promote their ability to provide both testifying experts as well as consulting experts who can also serve as "staff." The problem arises because a number of federal courts have expressed disapproval of such interactions and concluded that effective cross-examination cannot occur unless both the testifying experts and non-testifying experts who assist them are deposed. This raises the risk of disclosure of attorney work product that may have been shared with non-testifying experts in the expectation that it was protected.

The degree to which these precedents will be followed is unclear, and, as described below, there are substantial grounds to criticize them. Nonetheless, litigants should anticipate that these cases may be cited by opportunistic counsel seeking to expand the scope of expert discovery. Prudent litigants need to understand the factors that courts consider as justifying expanded discovery, and may want to take proactive steps to minimize the risks.

Work Product Protections For "Dual Purpose" Experts