Think Your Client is an Expert? You Just Waived Your Privilege!

Author: Daniel Fallon

Nobody likes spending money on experts. Well, nobody but experts! You might be thinking, “Heck, my trucking client knows just as much about the standard of care as a retained expert, so I am just going to have my client provide expert testimony and opinions in this wrongful death case.” Well, heck, you just waived the privilege protecting the communications between you and your client. Still think designating your client as an expert was a good idea?

It is not worth saving a few bucks in light of the significant risk of waiving attorney client privilege and handing over all of your precious legal analysis and work product to your opponent. Your client is your client. And your experts get paid for a reason. The blending of the two can create disastrous results for your case and your client.

In California, privileges are created by statute and may not be developed or modified by the courts. Ev.C. § 900 et seq.; Pitchess v. Sup.Ct. (Echeveria) (1974) 11 Cal.3d 531, 540. The attorney client privilege is held by the client, who can waive the privilege by voluntarily abandoning the secrecy it protects. Ev.C. § 912(a). Waiver occurs when the client consents to disclosure of a significant part of the confidential communication. Id. Pursuant to the doctrine of “fundamental fairness,” an implied waiver can be found where the client places in issue an otherwise privileged communication vitally relevant to the claim in controversy. Merrit v. Sup.Ct. (Reserve Ins. Co.) (1970) 9 Cal.App.3d 721, 730. It is in this area of implied waiver that designating a client as an expert places privilege claims in peril.

Once it becomes reasonably certain a designated expert will provide an opinion on a material matter in dispute, the attorney work product doctrine dissolves and the expert’s opinions and bases therefore become subject to discovery. County of Los Angeles v. Sup.Ct. (Hernandez) (1990) 222 Cal.App.3d 647, 657. The prospective testimony of the expert, as well as concurrent production of documents, will necessarily disclose a significant part of the previously protected communications to the expert, such that the protections and privileges are waived with respect to all communications to that expert. National Steel Products Co. v. Sup.Ct. (1985) 164 Cal.App.3d 476.

In other words, once you have designated your client as an expert and your client’s expert testimony is reasonably certain, you have waived the attorney client privilege as to all communications between you and your client! Yes, all those detailed status reports to your client have now become discoverable. All those flippant emails to your client about opposing counsel’s bad breath and poor fashion choices are now open for examination. Everything! Now you’re realizing why it is a good investment to retain an expert and protect your client communications.

If you are getting nervous reading this, do not fret, as there is a solution to your problem! Designation of an expert witness is conditional, and not absolute. County of Los Angeles v. Sup.Ct., supra. at 657. The attorney client privilege is not waived simply upon designation of your client as an expert, but instead requires “reasonable certainty” the client will actually testify as an expert. Shooker v. Sup.Ct. (Winnick) (2003) 111 Cal.App.4th 923, 930. A party has the right to withdraw its expert designation prior to testifying at deposition or trial, and no leave of court or notice to your opponent is required. C.C.P. § 2034.260; County of Los Angeles v. Sup.Ct., supra. at 657. If the expert designation is withdrawn before you have disclosed a significant part of your privileged communications with your client/expert, there will be no finding of an implied waiver of the attorney client privilege. Sure, you might be without an expert at that point, but at least you have not opened your complete files to your opponent!

Bottom line: protect your client, retain an expert.

ABOUT THE AUTHOR: Mr. Fallon specializes in civil litigation in the areas of professional liability. He has significant experience executing litigation strategies to the benefit of his individual and corporate clients. Contact Dan at 858.263.4132 or dfallon@tysonmendes.com

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