Are Consulting Experts Always Privileged and Confidential? Arguments For and Against Production

IMG_3255-scaled-1-200x300by HWC Partner Carter Clay

Any attorney who represents clients in cases that require experts will more than likely come across discovery issues involving those experts. Who is considered an expert and whether or not his or her identity must be disclosed? Specifically, what about consulting experts that will not be a witness at trial, must his or her identity be disclosed to the other parties? In cases involving product liability, this is especially common because of the oftentimes-complex nature of the device at issue. So, what about the discovery of the identification of non-witness consulting experts “attending” the examination of the subject defective product? This article seeks to address circumstances whereby the confidential nature of consulting experts might be removed.

IMG_0791-300x200For instance, in a product liability claim where expert inspections of the product will take place, do the inspections have to be jointly conducted? Can one party insist upon taking possession of the product and conduct an inspection outside the presence of other parties? If one party and the experts take possession of the product, does that party have to disclose the identity of the expert(s) who will be involved in the inspection and handling of the product, and what will they do at the inspection?

These discovery issues are governed by Rule 26 of the Alabama Rules of Civil Procedure. However, it is arguable that the specific section of Rule 26 that applies is not at all clear. The party opposed to disclosing the identity of and the work of a consulting expert may argue that:

Rule 26(b)(5)(B) is the controlling provision, and that the identity of a consulting expert is protected work product. Contending that “[a] party may discover facts known or opinions held by an expert… who is not expected to be called as a witness at trial, only… upon a showing of exceptional circumstances” that would make it impractical for the party to seek such information elsewhere.

Rule 26(b)(5)(B), Ala. R. Civ. P. While the Alabama Supreme Court, in Ex Parte Cryer, held that it was not an abuse of discretion for a trial court to refuse to order a defendant to disclose the name of its consulting expert under 26(b)(5)(B), the court provided virtually no analysis related to the issue at hand, 814 So. 2d 239, 249 (Ala. 2001). In reaching its decision, the Court did not unequivocally embrace the application of Rule 26(b)(5)(B) to the exclusion of Rule 26(b)(1), which is the overarching, general provision governing discovery. Id. Even so, the holding in Cryer may provide the opposing party with the argument that the identity of a consulting expert is protected work product and not subject to discovery absent the required showing of “exceptional circumstances,” which is the burden for the party seeking discovery.

In response, the party seeking discovery can distinguish the facts and circumstances in Cryer from various other factual circumstances. In Cryer, the Defendant had consulted or spoken with a fellow doctor regarding medical treatment and claimed he had done so, in part, in anticipation of litigation. Cryer, at 248. However, in a product liability case, the the facts and circumstances are usually more complex. While the identity of a consulting engineer or doctor would generally not be discoverable, when it involves “attendees” at an examination or inspection of the subject product or device—the most critical piece of evidence in the case—there is more at stake than merely consulting with a fellow doctor.

In a product liability case, involving an inspection or examination of the product, the party seeking discovery will likely argue that:

the “plain language” of Rule 26(b)(5)(B) establishes no application because it only applies when a party is seeking the “facts or opinions held by an expert.” In the context of simply disclosing the identification of attendees and location of the examination, the party is not seeking any such information stated in the rule. The rule mentions nothing about the disclosure of the identity of a consulting expert.

Furthermore, Federal Rule 26 and Alabama Rule 26 are virtually identical. Many federal courts addressing this issue have not conclusively held that identity of specially employed or retained consulting experts is not protected from disclosure. Manzo v. Stanley Black & Decker, Inc., 2015 U.S. Dist. LEXIS 2861 (E.D.N.Y. Jan. 9, 2015); Baki v. B.F. Diamond Construction Co., 71 F.R.D. 179 (D. Md. 1976); Nemetz v. Aye, 63 F.R.D. 66 (W.D. Penn 1974); Eisai Co. v. Teva Pharm. USA, Inc. 247 F.R.D. 440 (D. N.J. 2007). These courts all held that whether the identity of a specially employed or retained consulting expert is subject to discovery should be evaluated under the general relevancy prong of Rule 26(b)(1). Baki, at 179. With very little Alabama Case law, federal case law can be used as persuasive authority, especially for the seeking party, guiding the trial court to make a reasoned approach in it decision.

IMG_0821-300x200To further persuade the court, the party seeking discovery may also present additional arguments. In some cases, the actions, deeds, and conduct of a party can be, at the very least, an “implied agreement” to disclose the identity of individuals or attendees that would be present at an inspection or examination of the subject products. For example, if on two prior examinations a party requests and insists that sign in sheets be generated  and produced to all parties, and all parties agreed—or were essentially compelled—to be able to attend. In a situation such as this, it would seem that each party would expect the same level of consideration and reciprocity going forward. That, if it was appropriate for the party that is now opposing the disclosure, to have previously requested, and even insisted, upon the disclosure of those attending the inspections, then it should certainly be appropriate for the other party to expect the same. As the old adage goes, what is good for the good is good for the gander.

In addition to the parties’ implied agreement to disclose the identity of these individuals, the seeking party may also contend that the parties also “waived their rights” to maintain any level of confidentiality and protection from disclosing the identity of all individuals up to that point. Moreover, the parties should be “equitably stopped” from arguing that it should not have to disclose the identity of those attending the examination as well as the location of any examination.

The opposing party will likely contend that, although the arguments by the seeking party are based on principles and theories of law, they are essentially arguments of “fairness.” That because the seeking party voluntarily disclosed consulting expert witnesses, the opposing party should be forced to do the same. However, under Alabama Law and precedent, each party is entitled to protect the identity and work product of its consulting experts. Thus, a “voluntary waiver” is not grounds to compel a waiver of rights to retain confidential consulting experts—which would constitute  bad public policy and impede the just and fair resolution of litigation. The opposing party may urge the court that the parties would be chilled from exercising their rights to independent, objective, expert review of litigation issues by confidential consultants. Without this advice, parties would be less likely to enter settlement discussion. This loss of confidentiality would inhibit the full flow of information between parties and their consulting expert necessary for objective and independent review.

They will further claim that the previous “sign in” process was standard practice, and would certainly be at entities with confidential trade secrets, processes, or products and other protected competitive information. Thus, a process like this would be reasonable and did not “compel” any act or disclosure by the other parties. Furthermore, under 26(b)(5)(B), the touchstone is “exceptional circumstances”—not fairness. If the party seeking disclosure has already retained experts, exceptional circumstances are likely absent because it is not “impractical” to obtain facts and opinions by other means.

However, the seeking party will assert that a claim that fairness should play no part in the court’s analysis would likely be found meritless by the court. This is because the conduct and actions of the parties and attorneys is one of the primary reasons why trial courts are granted such broad discretion on discovery matters. Essentially, the opposing party would be asking the court to rubberstamp an attempted hoodwinking job.

Another consideration that is imperative in a case with a defective product is the “chain of custody.” The subject product is usually the most critical piece of evidence in the case, and if the product is intertwined or very fragile, it can further complicate the chain of custody issue. The Plaintiff has the burden of proving that the subject device was in fact defective. It is essential that such evidence is preserved and protected to the fullest extent possible. The Cryer court was not dealing with an issue involving the examination of the subject product in a product liability lawsuit. If so, a different result may have been reached.

The federal cases cited above held that the party seeking identity of a consulting expert was entitled to disclosure. In those cases, the factual circumstances were even less compelling than the facts that have been discussed throughout this article. Those cases were similar to Cryer, as they did not involve the examination of the subject in a product liability lawsuit where preserving the device and maintaining a chain of custody are essential.

Depending on the facts and circumstances surrounding the case, and the arguments outlined by each party, the trial court will ultimately  make a decision. Under Alabama Law, the trial court has broad discretion in determining these discovery issues. Thus, it is crucial that a party desiring this kind of discovery request same early in the litigation and if the opposing party fails to produce same, then the party should file a motion to compel with the court. Likewise, if you are a party resisting or favoring such a disclosure, these arguments will provide guidance on the discoverability of the issue.

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