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Though most attorneys recognize the broad discovery requirements for testifying expert witnesses, they may not fully understand the difference when a company's employee or longtime consultant is the expert, as opposed to the traditional "hired gun" retained solely for that case. "Fourteen years after the 1993 amendments to Rule 26, courts continue to differ over how to treat so-called employee experts," say Shawn Patrick Regan and Paulo Roberto Lima, partner and associate, respectively, in the Litigation Practice Group at Hunton & Williams LLP (New York). "Specifically, the courts differ over whether the typical company employee can be considered a testifying expert for the purposes of Rule 26(a)(2)(B), and, therefore, be subject to, the rule's requirements at all. Courts are also divided — albeit much less evenly — on whether the fact that an employee expert is subject to Rule 26(a)(2)(B) means that the attorney-client privilege and work product doctrine are waived as to any documents produced or viewed by that witness." Regan and Lima say the implications are significant, in some jurisdictions potentially requiring counsel to produce more information than they had anticipated in discovery, while in other jurisdictions potentially limiting the materials that the expert would be required to produce. They are available to write an article examining the splits in authority and offer some guidance, based on the case law, for how litigants can avoid unknowingly subjecting themselves to overly broad discovery. [08/02/2007]
Channel: Jaffe Legal News Service - Articles for Publication
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