By Frank Chrzanowski, Ph.D.

In cases involving the use of an Expert Witness, the rules of the courts are that all products of work produced by the Expert — notes, memos, e-mails, drafts of the Expert Report, suggested strategies and questions for opposing witnesses, documents received and reviewed, and even billing records and contracts related to the case — can be subpoenaed and reviewed by opposing counsel. However, the attorneys are protected and need not provide work products to opposing counsel.

In some instances the Expert serves as a consultant in developing the case, strategy and potential questions to be raised by the attorneys. Or the Expert may be required to review volumes of documents in order to understand the case. In such a case I reviewed nine large volumes of documents, the majority of which were not included in my Expert Report. The simplest method of summarizing these documents was to prepare memos to files that captured facts, omissions, errors, comments, explanations of fact, and possible strategies. Opposing counsel normally review these work products and documents and include them in questioning the Expert Witness during depositions and actual court testimony.

One strategy used to avoid providing work product is to use several experts and use only one to prepare an Expert Report and serve as the Expert for trial. That allows counsel to gather facts, comments, strategies and opinions from one or more additional experts and distill them into a strategy with the Expert for trial, who has none of the baggage of the other experts.

A new rule is expected to take effect at the end of the year that would protect the work product of Expert Witnesses.

The good news is that the opposing counsels will no longer be able to subpoena work product and interrogate the Expert on their work product, related documents and activities. The bad news for Experts is that the old strategy will no longer be necessary, and fewer Experts are expected to be needed in each case.

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Frank Chrzanowski, Ph.D. is a Pharmaceutical Development and CMC issues Consultant and Patent Litigation Expert Witness in U.S. and Canada. You can reach him by e-mail at frankchrzan@comcast.net by phone at 856-983-7996, and on the web at http://comcast.net/~frankchrzan