3 Steps to Protecting Expert Communications in Litigation

During litigation, plaintiffs and defendants will do everything within their power to gain access to the opposing lawyer’s emails, documents, and recordings. These communications and files can contain vital information about their case strategy.

Of course, there are some documents a litigant cannot access under (almost) any circumstance. Lawyers can almost always withhold their internal working papers and communications from the discovery process under the work-product doctrine. Similarly, emails and texts between a lawyer and their client cannot be transferred to the opposing legal team due to attorney-client privilege. Not all forms of communication enjoy this level of protection, however. In some instances, letters and emails between an attorney and a testifying expert may be discoverable.  

For example, Florida Rules of Civil Procedure § 1.280(b)(5)(A)(i) states that litigants have a duty to disclose the substance of the opinions to which an expert will testify. They should also provide a summary of the grounds for each of those opinions.

Some attorneys suggest this law (and others like it) mean an expert’s notes, emails, letters, draft reports, text messages, and working papers, may be open to discovery during litigation.

How to Protect Expert Communications During Litigation

The prospect of sensitive messages between a lawyer and an expert being viewed by opposing counsel can be quite frightening. Luckily, there are several steps legal professionals can take to protect themselves and their client, such as:

• Inform the Expert: When attorneys let experts know that just about anything they write may be read by the other party, they tend to be much more careful with their words.
• Talk on the Phone: Speaking on the phone, rather than by email, avoids the creation of a paper trail.
• Limit the Expert’s Access: The less privileged information an expert has access to, the less likely they are to inadvertently include such information in their notes or draft report.

The steps are relatively simple. However, if properly implemented, they can help attorneys avoid long, complex court battles over emails, texts, and draft reports.

Contact The Frazer Firm to Learn About Protecting Your Business!

The skilled business litigation attorneys at The Frazer Firm have been protecting Florida businesses and business owners for many years. We understand how discovery works – and we know how to protect sensitive expert communications. If you’d like to discuss this matter with a member of our team, please schedule a consultation or call us today.