Expert Privilege - New Changes

Presented to

Dallas Bar AssociationEnvironmental and Natural Resources Law Section

July 28, 2011

Presented by

Cindy BishopGardere Wynne Sewell LLP

Dallas, Texascbishop@gardere.com

Expert Privileges – New Changes

Avoiding Disaster

• Privilege 101

• Types of Experts

– Consulting versus Testifying

• Old Rules

• New Federal Rules effective December 1, 2010

• Tips for Getting Hired

Privileges• Attorney-Client Privilege: Confidential communications made for the

purpose of facilitating the rendition of professional legal services to the client:

(A) between the client or a representative of the client and the client’s lawyer or a representative of the lawyer:

(B) between the lawyer and the lawyer’s representative;* * *

or (D) between representatives of the client or between the client and a representative of the client

Tex. R. Evid. 503(b)(1).

Attorney-Client Privilege (continued)

(1) A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.

(2) A “representative of the client” is:

(A) A person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client, or

(B) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.

Work Product PrivilegeTexas Rule of Civil Procedure 192.5:

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees or agents; or

(2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.

See also FRCP 26(b)(3)(A)

Exceptions to Privileges

• Facts• Waiver

– Sent to state agency– Discussed with or sent to a third party– Reviewed by a testifying expert

Testifying Expert (old version)

• A party must disclose the identity of any expert witness it may use at trial

Federal Rule: This disclosure must be accompanied by a written report – prepared by and signed by the witness. Report must contain:

• A complete statement of all opinions• Any exhibits that will be used to summarize or support them• The witness’ qualifications, including a list of all publications authored

in the previous ten years• A list of all other cases in which, during the previous four years, the

witness testified as an expert at trial or by deposition; and• A statement of the compensation to be paid for the study and

testimony in the case• The data or other information considered by the witness in forming

themFed. R. Civ. Proc. 26(a)(2)

Testifying Expert, cont.Texas Rule: A party may discover the following information regarding a

testifying expert:

• Expert’s name, address and phone number;• Subject matter on which a testifying expert will testify;• Facts known by the expert that relate to or form the basis of the

expert’s mental impressions and opinions formed• Expert’s mental impressions and opinions and any methods used to

derive them• Any bias• All documents, tangible things, reports, models, or data compilations

that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony

• Current resume and bibliography

Tex. R. Civ. Proc. 192.3(e)

Testifying Expert, cont.

The Problem

Consulting Expert, Part I

• Ordinarily, a party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial

BUT

• A party may discover facts, etc. on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

Fed. R. Civ. Proc. 26(b)(4)(B)

Consulting Expert, Part II

A party may discover information regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert.

Fact Witness vs. Expert

• Personal Knowledge of the Facts (and how the facts were collected) vs. Opinions Based on the Facts

• Can facts witness and testifying expert be the same?

• Can facts witness and consulting expert be the same?

Privileged

Privileged

Privileged

FACTS

Attorney-Client Privilege

CONSULTANT

ATTORNEYLaw Firm

CLIENTEH&S

ATTORNEYIn-HousePr

ivile

ged

?

Privileged

Privileged

Privileged

FACTS

Attorney-Client Privilegeand the Consulting Expert

CONSULTING EXPERT

ATTORNEYLaw Firm

CLIENTEH&S

ATTORNEYIn-HousePr

ivile

ged

Privileged

Attorney-Client Privilegeand the Testifying Expert

PrivilegedPrivileged

Privileged

Privileged

FACTS

CONSULTANTTESTIFYING

EXPERT

ATTORNEYLaw Firm

CLIENTEH&S

ATTORNEYIn-HousePr

ivile

ged!

Testifying Expert Issues

• Produce drafts?• Produce documents “and other information”

considered by the expert?• Don’t forget emails and electronic

documents.

Changes to the Federal RulesDecember 1, 2010

26(a)(2)(B) – Testifying Expert Disclosure

Old Rule:

• the data or other information considered by the witness in forming them;

Change:

• the facts or data considered by the witness in forming them

Changes• 26(b)(4)(B) Trial-Preparation Protection for Draft Reports or Disclosures.

– Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

Changes• 26(b)(4)(C) Trial-Preparation Protection for Communications

Between a Party’s Attorney and Expert Witnesses. – Rules 26(b)(3)(A) and (B) protect communications between the

party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

• relate to compensation for the expert’s study or testimony;• identify facts or data that the party’s attorney provided and that

the expert considered in forming the opinions to be expressed; or• identify assumptions that the party’s attorney provided and that

the expert relied upon in forming the opinions to be expressed.

HYPOTHETICALS

Expert draft report prepared for attorney

Privileged report? ____ Y ____ N

Testifying expert emails attorney with his thoughts on the case.

Privileged email? ____ Y ____ N

Lawyer discusses case’s merits with testifying expert.

Is conversation privileged?

____ Y ____ N

Testifying expert reviews consulting experts notes/memos/report.

Are the documents privileged?

____ Y ____ N

With litigation pending, consultant talks to client without involving an attorney.

Privileged communication? ____ Y____ N

Consultants -How to Avoid Disaster

• Treat all written communications (including invoices and proposals) as documents that will be produced in litigation and shown to a jury

• Discuss protocol BEFORE writing anything (e.g., what to do about drafts)

• Do not draw conclusions unless asked – stick to the facts

• Only do what was requested by the attorney/client – do not elaborate

Consultants – How to Avoid Disaster II

• Do not discuss the case with non-lawyer clients without checking with the attorney

• Keep track of EVERYTHING you receive and review for the case

• If you have been retained as a consulting expert (or do not know), mark written documents as PRIVILEGED – PREPARED AT THE REQUEST OF COUNSEL

• If you have a question – CALL the attorney

How to Get Hired• Testifying experience• CV contains relevant experience for this case• Well-written CV – no grammar errors• No adverse positions in prior matters

– Articles/Papers/Reports– Prior testimony (transcripts)

• Follow directions

Presented to

Dallas Bar AssociationEnvironmental and Natural Resources Law Section

July 28, 2011

Presented by

Cindy BishopGardere Wynne Sewell LLP

Dallas, Texascbishop@gardere.com

Expert Privileges – New Changes