You are defending your client, a company engaged in complex scientific or technical work. As you head to trial, you have a tough decision to make. The client has employees and consultants with the knowledge and expertise to present expert testimony to help the fact-finder understand these issues. The client also has employees and consultants who are percipient witnesses whose factual testimony may be construed as venturing into expert territory, and you must ensure that these individuals are not precluded from testifying for failure to disclose them as experts. The safest, most cost-effective, and efficient approach might be to list these individuals as non-reporting experts (i.e., witnesses who have not been retained or specially employed to provide expert testimony in the case or whose duties as the party’s employees do not regularly involve giving expert testimony). However, in doing so you may have walked into a trap caused by Rule 26 of the Federal Rules of Civil Procedure (“Rule 26”). Your opponent can now try to argue that the attorney work product and attorney-client privileges have been waived and demand production of broad categories of previously protected documents.

Originally published in The Recorder© - August 9, 2017.