To Retain or Not to Retain


You’ve heard the expression “why buy the cow if you can get the milk for free.” Well, if your cow is an expert witness, there may actually be a good answer to that question – privileged communications.

Today we bring you a case from outside the products liability arena, but one that deals with a subject near and dear to our hearts – experts. By now, products liability practitioners are familiar with the 2010 amendments to Federal Rule of Civil Procedure 26(a) and (b) aimed at clarifying the permissible scope of expert discovery. We discussed those changes here. But as with most areas of the law, clarity only comes, if at all, after much debate. With the 2010 amendments in their infancy, the debate is only beginning. So, while there are many facets to the new Rule 26 to be explored, the recent case that caught our eye deals with the distinction drawn by the rule between reporting and non-reporting experts as to the protection afforded communications with party counsel and more worrisome whether the latter can be converted to the former for a nominal fee.

At issue in United States v. Sierra Pacific Industries, 2011 U.S. Dist. LEXIS 60372 (9th Cir. May 26, 2011) – which involves damages caused by a forest fire in 2007 – was whether the United States waived work product and attorney-client privilege as to communications between its attorneys and two federal government employees when it designated those employees as expert witnesses. The Ninth Circuit said yes.

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