Privilege

Privilege

Thomas E. Spahn | McGuireWoods LLP

In his previous Privilege Point, McGuireWoods partner, Thomas Spahn, addressed a court's careful sorting out of discovery issues implicated when a non-testifying consulting expert created documents arguably related to his later role as a testifying expert. Here, he picks up where he left off.

Privilege

Thomas E. Spahn | McGuireWoods LLP

Fed. R. Civ. P. 26(a)(2)(B)(ii) governs testifying experts' duty to produce "the facts or data considered by the witness in forming" his or her opinion. Fed. R. Civ. P. 26(b)(4)(D) governs dramatically different non-testifying consulting experts. Not surprisingly, witnesses might switch from one role to the other, and also might possess arguably pertinent facts from direct or tangential participation in the pertinent underlying events.

Privilege

Thomas E. Spahn | McGuireWoods LLP

The frighteningly unpredictable "at issue" waiver doctrine can strip away attorney-client privilege protection when the client seeks some legal advantage by putting "at issue" its knowledge, ignorance, conduct, etc. This type of waiver does not involve any actual disclosure of privilege communications or any explicit reliance on lawyers or their advice.