Legal privilege part 3: US law


Published: 14 October 2014

The Association is grateful to Messrs. Morrison & Forester LLP for contributing to this update. The attached case report was first published in the Litigation newsletter of the International Law Office and is republished with their kind permission.

The development

In a recent decision, as per the attached article, a US court considered the application of the Federal Civil Procedure Rules in the context of whether communications with expert witnesses are protected from "discovery" (the procedure under which documentation and information has to be shared in legal proceedings with the court and other parties, in the UK it is known as "disclosure").

It had been the practice in Federal courts to allow such disovery of attorney - expert communications as well as of draft expert reports. In that regard the US rules allowed for a much wider disclosure of such communications than under English rules, although it must be noted that the English Procedure Rules have changed significantly in this regard, too, with much more material being subject to disclosure now when it comes to experts than had been the case prior to the fundamental overhaul in the UK started by the Woolf Reforms.

In the US it appeared as if the process was moving the other way, and while it would seem that the relatively new 2010 Federal Rules of Civil Procedure imposed greater restriction on the disclosure of such documentation, there are important exceptions which do allow for disclosure of elements of the instructing lawyer's data and assumptions provided to the expert witness. Furthermore the court in this case sought to, from a practical side, limit the extent of the protection that may appear to exist in the written rules.

Further details of this discussion are in the attached article from Morrison & Forester LLP, the original of which can be found here.

Practical application

If a situation arises from which litigation is likely to follow, especially if it can be envisaged that significant exposures may arise, then retaining experts at an early stage may prove to be a valuable and necessary step. Certainly for casualties, pollution incidents, serious collisions and groundings as well as major cargo and personal injury cases, recourse is often had early on to subject matter experts.

While there may be an assumption that, especially if lawyers are retained through whom such experts are instructed, that the subsequent communication and preliminary reporting is somehow "confidential" or otherwise will not be subject to scrutiny during subsequent legal processes, it is clear from the development of both US and UK law that this not a safe assumption to make.

Courts have, over time, taken a clear stance against the "hired gun" of old, as was discussed in great detail in the seminal UK legal decision of the Ikarian Reefer [1993] 2 Lloyd's Rep. 68.

Parties must now work on the basis that courts will themselves carefully scrutinize the terms and basis of any instruction to an expert, as well as permit any opposing side to have significant access to such instruction, too. Going forward this will require a sophisticated and careful approach whenever experts are to be retained and instructed.

For further information, members are asked to contact the Association.