Commercial Litigation and Arbitration

Engaging Experts

Gregory P. Joseph

Experts are dangerous. Not just the other side’s experts — yours. Every note they take, every draft they write, every document, email or phone call they share with you may be discoverable. American Fidelity Assur. Co. v. Ladonna Boyer & Comb. Ins. Co., 225 F.R.D. 520 (D.S.C. 2004) (collecting cases); see generally 6 Moore’s Federal Practice § 26.80[1][a] (3d ed. 2005). If your experts destroy any of this material, let alone if you direct them to do so, your client — and you — are exposed to sanctions. See generally Joseph, Expert Spoliation, Nat’l L. J., Feb. 3, 2003, at B7.

Experts may use confidential information for other purposes (e.g., articles); they may take on conflicting engagements; they may prematurely disclose their engagement on your case. Experts are trouble.

You are in control of this situation. You are responsible for your experts. You will bear the consequences of their behavior. It is essential to exercise control of retained experts throughout the relationship, knowing that the exercise itself is likely to be subject to discovery.

The retainer letter engaging the experts is an overlooked key to controlling the relationship. This article discusses a form of expert retainer letter that is fashioned to address a variety of potential pitfalls.

All experts should be retained, at the outset, as consulting experts. The work product of consulting experts is generally undiscoverable under Fed.R.Civ.P. 26(b)(4)(B). Unless and until you are required to designate testifying experts pursuant to Rule 26(a)(2)(A) or (B) (or the pretrial order), you don’t know with certainty whether you will need a testifying expert or, if you do, whether the experts initially retained will ultimately be the right ones for trial, in light of the evolution of the case through discovery and motion practice.

The heart of the form retainer letter consists of the following two paragraphs, which are analyzed in depth below:

[1] It is understood that (i) you will make a reasonable effort to be available upon reasonable advance notice; (ii) you will keep confidential all information obtained, or analyses developed, in connection with this litigation or any related litigations with respect to which we may seek your advice and counsel; (iii) you will use such confidential information solely in connection with your engagement by us on our client’s behalf; (iv) you will preserve any written materials, including e-mails, generated or received by you in connection with this engagement, as such materials are potentially discoverable in litigation; (v) you will not in the future consult for, or otherwise represent, any other person or entity with an interest adverse to our client’s interests in or concerning the pending litigation, or the events or occurrences out of which the pending litigation arises; and (vi) you will keep confidential your retention by this firm on behalf of our client, unless and until you are identified in court papers as a testifying expert or we otherwise authorize you to breach this confidentiality.

[2] It is specifically understood that, if you are later designated a testifying expert, all documents that you create may become discoverable, including drafts and notes prepared prior to the time that your opinion or report is finalized. In our experience, opposing counsel who obtain such documents in discovery often seek to use them in an unfair and misleading way — for example, to suggest that a change from an earlier draft to a later version has some sinister explanation. This is particularly unfair because you will be learning the case over time, and you may not know all relevant information prior to the time that you finalize your opinion and report. In addition, the preparation of draft opinions and reports is expensive and should not be undertaken prematurely. Therefore, you agree that: (i) you will not prepare any draft opinion or report without our consent (regardless of whether the draft is for internal purposes or to share with others); (ii) you will not share any draft opinion or report, or any notes, with any other person without our consent; (iii) every draft opinion or report will bear the following legend: ‛THIS IS A PRELIMINARY DRAFT. IT HAS BEEN PREPARED BASED ON PRELIMINARY INFORMATION AND ON ASSUMPTIONS. NO ONE MAY RELY ON THIS DRAFT. IT IS SUBJECT TO CHANGE AS ADDITIONAL INFORMATION BECOMES AVAILABLE OR IS CLARIFIED“; and (iv) all notebooks or individual pages of notes will bear the following legend: ‛THESE NOTES ARE INCOMPLETE AND HAVE BEEN PREPARED FOR PERSONAL USE ONLY. NO ONE MAY RELY ON THEM FOR ANY PURPOSE. ALL VIEWS ARE SUBJECT TO CHANGE AS ADDITIONAL INFORMATION BECOMES AVAILABLE OR IS CLARIFIED“

Paragraph 1(i) is self-explanatory. Paragraph 1(ii)-(iii) impose strict confidentiality restrictions, preventing the expert from using information obtained in the course of the engagement for any purpose other than the engagement. They tie to, and reinforce, paragraph 1(v), which forbids the expert from taking a position adverse to the client in a future litigation that we would describe as ‛substantially related,“ were the expert subject to precepts of legal ethics. Paragraph 1(vi) prevents the expert from leaking his or her engagement prematurely. Among other things, this is designed (in conjunction with subparagraphs (ii) and (iii), as well) to prevent the service of a premature subpoena on the expert — i.e., prior to the time that testifying experts have been identified.

Paragraph 1(iv) — Document Retention. Paragraph 1(iv) addresses the crucial issue of document retention by the expert. It requires the expert to retain a copy of all hard copy and electronic documents that the expert generates, receives or consults in the course of the retention, specifically including email. Counsel should also have in place a practice of maintaining a copy of all documents sent to, or received from, experts. Having placed a contractual obligation on the expert, and with this parallel document retention system in place, little of import should ever be lost. If something is nonetheless lost, counsel will have a strong argument that neither the client nor counsel should be punished for an error — committed by the expert — that counsel acted concertedly to avoid.

Paragraph 2 — Document Creation. The crux of the spoliation problem is document creation. What does not exist cannot be spoliated. Paragraph 2 strictly limits the timing of document creation, and it is intended to put them in the best and most accurate light.

The first three sentences of paragraph 2 set the tone and context. There is nothing wrong with limiting the creation of documents. It is expensive and it frequently leads to unfair sniping by adversaries. These introductory sentences are intended to set the stage should this ever become a jury issue by taking some of the sting out of the predictable cross-examination. More about this below.

Paragraph 2(i) forbids the creation of any draft — or notes — without permission. A premature draft on an incomplete set of facts is a recipe for disaster on cross-examination. If it comes to the right conclusion, the facts were unimportant to the expert. If it comes to an erroneous conclusion, the expert is a fool. The best draft is one percolating ethereally and silently in the expert’s mind.

Incomplete notes are no better. A note that, for example, enigmatically summarizes your articulation of you adversary’s position may look as though it is instead your expert’s view. Fewer notes produce less backing and filling by the expert on the stand.

Paragraph 2(ii) forbids the sharing of any draft by the expert without permission. Drafts seen by others, including you, are usually discoverable. But some courts take the very sound view that a draft which the expert keeps to him- or herself may not be discoverable. See, e.g., Trigon Ins. Co. v. United States, 204 F.R.D. 277, 283 & n.8 (E.D. Va. 2001).

Paragraph 2(iii) recognizes that, at some point, the expert must prepare a draft. You have to see what your expert proposes to say to make sure that it is bulletproof both factually and analytically. Paragraph 2(iii) requires that every draft bear a specific legend in all caps. The purpose is to give you ammunition to undercut effective cross-examination of your expert on a draft. During the course of the cross-examination, Fed.R.Evid. 106 (the rule of completeness) gives you the right to require that the legend be read to the jury during cross, if the court considers it appropriate. Rule 106 is drafted in mandatory terms: ‛When a writing or ... part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part ... which ought in fairness to be considered contemporaneously with it.“

Paragraph 2(iv) recognizes that, while no notes are ideal, that is utterly impracticable. It therefore deals with notes by requiring a legend on the front of any notebook or at the top of any stray page of notes. This legend can easily be cast in a stamp that is furnished to the expert.

This form of retainer letter does not operate in a vacuum and does not solve all problems. You must be vigilant about what your expert is doing — something easier said than done over the often lengthy duration of a case. You should control the quantity and nature of your communications with your experts. You should keep copies of all interchanges with the expert. Even better, you should attempt to agree up front with your adversary that both sides will desist from discovery of draft reports and communications between expert and counsel. Such an agreement would render much of the content of the proposed retainer letter superfluous.

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