Non-Reporting Employee Experts and the Attorney-Client Privilege
A bedrock legal principle is the attorney–client privilege. This privilege, found in Texas Rule of Evidence 503 and Federal Rule of Evidence 501, allows a lawyer and their client to have candid, frank discussions about their case and sensitive legal issues. If a lawyer and their client cannot openly talk to each other, the lawyer cannot effectively represent the client and the client cannot get the full benefit of our legal system.
The privilege protects not only information exchanged between a lawyer and their client, but persons authorized to act on their behalf. For example, if a client provides confidential information to a paralegal, that information remains privileged. But what about communications between an employee and a lawyer retained by a corporation?
Making an Employee an Expert
Imagine getting sued for alleged defects in a product sold for decades. No employees are still working who were around when the product was first manufactured and no employees exist with extensive knowledge of the product. An option available to defendants is effectively making an employee an expert on the history of the product through extensive study. This is beneficial to the corporation because they can call a witness at trial who can discuss the product. However, the preparation with the newly designated expert might not be protected by the attorney-client privilege.
The court’s decision in Luminara Worldwide, LLC v. RAZ Imports, Inc., 2016 U.S. Dist. LEXIS 158183 (D. Minn. November 15, 2016) offers insight into how the attorney-client privilege could suddenly become inapplicable. The plaintiff in this case designated one of its employees as a non-reporting, testifying expert witness under Federal Rule of Civil Procedure 26(a)(C). However, it turns out the defendant listed that same employee as a fact witness. During the employee’s deposition, the plaintiff objected to key questions arguing that attorney-client privilege applied. The plaintiff also objected to virtually all requests for production of documents issued by the defendant claiming the same privilege.
The defendants filed a motion arguing that employee’s designation as a non-reporting expert witness under FRCP 26(a)(2)(C) meant that the plaintiff effectively waived the attorney-client privilege regarding materials and communications provided to the employee in connection with his testimony. The court agreed, determining that the attorney-client privilege did not protect the preparation of the employee/expert.
The court reasoned all documents and information disclosed to any testifying expert in connection with his testimony, including any communications with attorneys, were discoverable by the opposing party. Therefore, the plaintiff was ordered to produce any documents and information used by the employee-expert.
The defendant requested everything the employee-expert generated, saw, read, reviewed, and/or reflected upon. The plaintiff attempted to narrow the scope, but the court agreed with the defendant asserting that all documents and information includes everything the employee-witness was exposed to in preparing his testimony.
Be careful how employees are designated as expert witnesses and be prepared for a challenge by opposing counsel if any documents or information is attempted to be withheld under attorney-client privilege.
South Texas Litigation Attorneys
As you can see, litigation can be rough with even seemingly mundane decisions like designating an expert witness becoming major issues. This is why your company needs to have experienced, seasoned defense counsel. The law firm of Colvin, Saenz, Rodriguez & Kennamer, L.L.P. is here to help. We maintain a robust litigation practice representing clients throughout South Texas in a variety of complex legal matters including corporate defense.