The use of ‘consulting’ experts and ‘testifying’ experts can make or break a case. In modern-day commercial litigation, it is commonplace to have either one or both of these types of experts assist a litigation team develop case themes and strategy. By virtue of their skills, training, experience and education, these experts can (and often do) play a significant role in the outcome of a case. Among other things, they use their expertise to simplify complex facts – educating counsel, clients and triers-of-fact.

The role of consultant and that of testifier are often assumed to be separate roles played by different people. In fact, federal courts recognise this distinction between the two by according different rules, standards and protections to each with respect to discovery and confidentiality.

What happens, then, when the two get morphed into one – when the consultant becomes the testifying expert witness? What rules apply? What disclosure is required? Does a litigant forfeit the consultant privilege that would otherwise attach when that consultant is later proffered as a testifying expert witness? Or, as one federal judge colourfully phrased the question: “[W]hether, and to what extent, the work-product privilege applies when an expert alternately dons and doffs the privileged hat of a litigation consultant and the non-privileged hat of the testifying witness.” Yeda Research and Development Co., Ltd. v. Abbott GMBH & Co. KG (292 F.R.D. 97 (D.D.C. June 7, 2013)).

Unsurprisingly, as with just about everything else in complex commercial litigation, the short answer (to whether the privilege is waived when the two types of experts become one) is: it depends.


Oct-Dec 2016 Issue

Baker & Hostetler LLP