Perhaps it should not need to be said, but it bears repeating: Do not share with your experts “confidential” information provided to you during the course of a mediation or settlement discussions. Sharing that kind of information risks having your experts excluded later.

I started practicing law just after the “new” California Discovery Code came out in 1986. I studied it front to back with the goal of knowing it better than the opposition. I was able to leverage that knowledge to put my cases in position to get summary judgment motions granted, cases favorably settled, or win at trial. About 20 years ago, Marin County Superior Court started its Discovery Facilitator program and I was asked to be one of the initial Facilitators. Safe to say my fascination with fine points of discovery goes deeper than some. But my observations and experience also make clear the importance of mastering discovery fundamentals whether or not you share my fascination.

Regarding experts, the first thing you need to know and keep in mind is that when your experts are disclosed, deposed, and their file is produced, then everything you provided to them will be in the hands of your opponent. What you give your experts is discoverable.

So as important as it is for your expert to be fully prepared and know all there is to know about the case, you must never take shortcuts such as providing carrier or client status reports to the experts. I have seen exactly that happen at other firms, and I have witnessed the consequences. Along these lines, you also do not want to send a detailed email or letter to your expert setting forth what you want them to address, and you definitely do not want to tell them what you want to hear. A good example of an email to an expert is:

Dear Expert,

See the attached materials. Please give me a call after you have reviewed them.

Love, Jim

That’s it. Talk to them on the phone all you want.

Another dangerous shortcut I have seen is attorneys providing their experts with plaintiff’s mediation statements or settlement demands, including the confidential reports prepared by plaintiff’s experts such as life care planners, economists, and treating physicians. Do not fall into this trap. If you came into possession of these materials via the mediation or settlement process, they should not be shared with your experts unless you have the express permission of opposing counsel. I know of two specific instances where experts were excluded at trial because an associate provided confidential reports to retained experts. Granted, these were in construction defect cases where information between experts tends to flow freely, but technically, the opposing party was legally correct, and the offending office was forced to start over and retain new experts.

Now, most plaintiffs’ attorneys will not object to you sharing their confidential expert reports with your experts, especially if the case is heading to mediation. If they do object, you know they probably have a weak case. But do not fall into the trap of sharing such reports and information without permission.

When weighing what to share (or not share) with your expert, think about protecting work product; think about not letting your legal theories and strategy—which would otherwise not be discoverable—get into the hands of the other side. You also want to avoid discovery disputes or sanctions based on improperly influencing your expert; you want to make sure their opinions are based on their own analysis.

And, of course, violating a confidentiality agreement with the other side is a sure path to trouble. You will have trouble enough just being a litigator. You can avoid the troubles that come from telling your expert what you ought not.

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