Experts, Privilege and Discovery — Consulting Expert Who Becomes Testifying Expert

The statistical expert (Dr. Siskin) retained by the defendant Employees Committed for Justice v. Eastman Kodak Co., 2008 U.S. Dist. LEXIS 39694 (W.D.N.Y. May 15, 2008) originally performed a study in 1999 that the defendant wanted to use in this employment discrimination case, so he was designated a fact witness. He also performed a study in 2003-04 at the behest of inhouse counsel. Finally, he was asked to perform certain analyses so that he could testify on the issue of class certification in 2008. The question: Given that he was now a testifying expert on class action certification, how much, if any, of the formerly privileged analysis that the expert undertook was now discoverable:

• “‘In other words, does a litigant forfeit the privilege that would otherwise attach to a litigation consultant's work when he offers that expert as a testifying witness? Every court to address this "multiple hats" problem has concluded that an expert's proponent still may assert a privilege over such materials, but only over those materials generated or considered uniquely in the expert's role as consultant.’”

• “‘[A]ny ambiguity as to the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking disclosure.’"

• “‘[E]ven if the expert avers under oath that he did not actually consider certain materials in forming his opinion, that will not control. Rather, the courts have embraced an objective test that defines "considered" as anything received, reviewed, read, or authored by the expert, before or in connection with the forming of his opinion, if the subject matter relates to the facts or opinions expressed.’”

• “As a litigation expert Siskin was asked to analyze the ‘limited dataset [of personnel data] examined by the EEOC’ in order to challenge ‘the conclusions drawn by the EEOC with respect to that particular dataset.’ *** Siskin's 2008 analysis was not drawn from or based on any previous study or analysis he had conducted, but rather was specifically limited to utilizing data already selected and studied by the EEOC in order to evaluate the scientific reliability of the EEOC's conclusions. In this particular factual context, the work Siskin did in 2008 does not relate to the facts or subject matter of the work he conducted for Kodak in 2003 and 2004.”

• “While the results of his consultative work need not be disclosed, the methodologies he utilized in 2003 and 2004 are discoverable. In his 2008 expert report, Siskin refers to his previous statistical work for Kodak, including the fact that Kodak asked him to develop ‘alternative statistical procedures to compare individuals and evaluate any potential historical differences that might lead to pay disparities.’"

Note that this analysis assumes that an expert report is required of witnesses who testify at class certification hearings. Doubtless the Court in Kodak ordered that one be prepared and submitted. Rule 26(a)(2), however, contemplates testimony at trial (see Rule 26(a)(2)(A)).

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