Discoverability of Expert Consultants’ Work Product
Kristen M. Bush, Esq.
Schwartz Semerdjian Cauley & Moot LLP
Attorneys regularly rely on the expertise of other professions when analyzing the strengths and weaknesses of their cases. An attorney may need to seek an expert’s opinion on forensic accounting of her client’s records to help ascertain whether a book keeper has been misappropriating funds. An engineer might be hired by an attorney to investigate whether the client’s the causes of a perceived construction defect. Doctors may be consulted to assist with evaluating an illness. Hiring experts may sometimes be the only effective way an attorney can give thoughtful advice to her client – ensuring that the attorney truly understands the facts that she has been hired to provide legal advice.
If the expert is hired as a non-testifying expert for consulting purposes, the communications with the expert and the work product produced as a result should be protective from discovery. However, like most privilege rules, there are important parameters and exceptions that should not be ignored. What if the attorney does not actually hire the consultant and the consultant is brought in by the client prior to hiring counsel? At what point does an expert consultant’s work product become discoverable in litigation? This article explores the scope of the discoverability of work by an expert consultant under California law and provides suggestions for ensuring that the work remains protected from disclosure.
Attorney-Client Privilege Generally Applies With Consulting/Nontestifying Experts
The attorney-client privilege “extends to communications which are intended to be confidential, if they are made to attorneys, to family members, business associates, or agents of the party or his attorneys on matters of joint concern, when disclosure of the communication is reasonably necessary to further the interest of the litigant.” Zurich American Ins. Co. v. Superior Ct. (2007) 155 Cal.App.4th 1485, 1498 (emphasis in original). Confidential attorney-client communications include those made to third persons “reasonably necessary” for the purpose of transmitting the information between attorney and client—e.g., communications to lawyer’s secretary, a physician or a similar expert acting as a conduit for communications between client and attorney. City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 236-38. The expert’s reports to the attorney regarding the client’s condition are protected as communications on behalf of the client. Such reports enable the client to interpret and communicate the client’s condition to the attorney. Id. at 237-38.
Absent waiver, if an “expert is solely retained as a consulting expert, the attorney-client privilege applies to communications made by the client or the attorney to the expert in order for the expert to properly advise counsel.” DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688. The attorney-client privilege applies to communications “to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” Cal. Evid. Code § 952. This includes communications to an expert consultant. DeLuca v. State Fish Co., Inc., supra, 217 Cal.App.4th at 688; Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 225. An expert employed by the attorney to examine the client and evaluate a condition, may be treated as an “agent” of the attorney for this purpose. Thus, any disclosures made by the client to the expert are protected as communications to an “agent” of the attorney. People v. Gurule (2002) 28 Cal.4th 557, 594.
Extension of the attorney-client privilege to expert consultants serves the legal profession by permitting attorneys to evaluate their case in preparation for litigation without fear that the opinions they receive from consultants will later be used against their client. The policy promotes the full exchange of information and allows attorneys to better serve their clients.
Who Actually Hired the Consultant?
There are situations that might complicate the extension of the attorney-client privilege to expert consultants. If the client seeks outside expertise relating to potential litigation prior to hiring an attorney to investigate a claim, it is unlikely that the advice of the expert will be protected under the attorney-client privilege. The consultant was not hired as an agent of the attorney so it is unlikely the privilege will exist. It is important to be clear that the expert is hired by the attorney and not the client in order to assist the attorney with preparing for litigation.
If your opponent is suspected of trying to cloak the attorney-client privilege protection over a consultant that was hired directly by a client and prior to counsel’s involvement, you may want to consider written discovery to identify the timing for when the expert was hired in order to establish whether the expert was an actual agent for the attorney or not.
Communicating with a Testifying Expert
Once an expert is designated as a testifying expert, that expert’s work will generally be discoverable. See Williamson v. Superior Ct. (1978) 21 Cal.3d 829, 834-35 (finding good cause to invade the conditional work product protection when an expert is expected to testify as opposed to serving as a non-testifying expert). If a designated expert has not yet been deposed, an attorney can withdraw the expert and retain them as a consultant. See Shooker v. Superior Court (2003) 111 Cal.App.4th 923 (expert witness designation may be withdrawn prior to disclosure of privileged material to avoid waiver of privilege); County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647 (noticed motion not required to withdraw disclosed expert; can withdraw previously designated expert for tactical reasons and retain as consultant; opposing counsel cannot contact consultant); Williamson v. Superior Court (1978) 21 Cal.3d 829 (cannot suppress evidence but can withdraw expert and retain as consultant).
The California Code of Civil Procedure does not explicitly address communications between experts and attorneys. Case law on the subject provides some insight, but there remains a lack of clarity. Attorneys should use caution in communicating with their experts in writing and keep a complete file of every communication between the law firm and the expert. This will help alleviate concerns for what may be produced by the expert when the expert’s deposition is taken. Written communications should not discuss weaknesses in the expert’s report that the opposing party could exploit if and when the communication is discovered.
Tackling These Issues Early
Understanding the parameters of expert consultants versus testifying experts may help you guard against discovery of information intended to remain confidential. If the expert is intended to be a consultant for the attorney, be sure to maintain clear documentation of the purpose of the hiring of the expert and keep the communications private. If the expert is intended to testify, be mindful of what is put in writing as it is likely the information will become discoverable.