Using Experts in Litigation: Discovery, Attorney-Client Privilege and Work Product Doctrine

Navigating FRCP 26 Discovery Rules and Protecting Confidential Communications With Experts and Outside Consultants

A live 90-minute CLE webinar with interactive Q&A

Tuesday, June 6, 2017
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, May 19, 2017

This CLE webinar will examine Rule 26 requirements governing expert witness discovery, including the practical impact of the “facts or data” scope change, draft expert report protections, and expert disclosure rules. The program will also analyze the attorney-client privilege and work product doctrine with respect to the use of experts and outside consultants before and during litigation. The program will discuss common pitfalls and approaches to protect confidentiality and attorney work product.


FRCP 26 provides work product protection to draft reports by testifying expert witnesses and to certain communications between the attorney and expert witness. The rules also address disclosures required for testifying experts who are not required to provide a Rule 26(a)(2)(B) report.

Communications between counsel and expert witnesses who must provide written reports are generally protected. If an expert is testifying and no report is required, counsel must comply with disclosure provisions under Rule 26. However, certain information is not protectable.

In addition, counsel must be careful to distinguish between the attorney-client privilege and work product and take appropriate steps to minimize the loss of confidentiality and to protect work product related to experts and outside consultants.

Listen as our panel of experienced litigators analyzes how the courts have applied Rule 26 regarding expert witness discovery and explains best practices for leveraging the rules to protect communications between attorneys and expert witnesses. The panel will guide you through the rules governing attorney-client privilege for communications with expert witnesses and consultants, the scope and applicability of the work product doctrine, common traps and pitfalls, and best practices for maintaining the privilege and protecting work product.


  1. Key features of FRCP 26
    1. Experts providing reports and experts not providing reports
    2. Expert reports limited to “facts or data”
    3. Draft reports, communications and exceptions
  2. Attorney-client privilege for experts and consultants
    1. Scope of attorney-client privilege for experts and consultants
    2. Scope of work product doctrine for experts and consultants
    3. Common pitfalls and traps that lead to waiver and loss of protection
    4. Best practices for protecting privileged communications and work product


The panel will review these and other key issues:

  • How do discovery rules distinguish between testifying experts and consulting experts?
  • What are the distinctions between the attorney-client privilege and work product with regard to disclosure?
  • What are best practices for protecting the privilege and work product when working with expert witnesses?


Steven C. Bennett, Partner
Park Jensen Bennett, New York

Mr. Bennett's practice focuses on complex domestic and international commercial litigation and arbitration, including bankruptcy, construction, corporate governance, data security, energy, privacy, real estate and other matters. He is a published author on numerous topics, including Commercial Settlement Agreements: Line By Line, and has presented at numerous CLE programs.

Guy O. Kornblum, Partner
Kornblum Cochran Erickson & Harbison, San Francisco

Mr. Kornblum has specialized as a trial and appellate lawyer for 40 years. He has handled over 3,500 litigated matters to conclusion and has several million dollar plus cases to his credit. Mr. Kornblum’s practice focuses on representing plaintiffs, claimants, policyholders and victims of tortious and contractual wrongs in insurance bad faith, among other claims.

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