MEC has encountered several instances where an attorney client has complained that an expert should be precluded from working for the opposition because they disclosed information regarding their case in an interview with the same expert who they had considered retaining, but had not. Our view has been that the client discloses information to a prospective expert before retaining him at their own risk, and that the expert is not precluded from accepting work from the opposition on the same case unless he has been retained.
In one specific instance which was set forth in a previous article, an attorney contacted an expert, discussed the case with him, and closed the conversation with "we'll get back in touch with you." A month later, the expert was retained by the other side, much to the consternation of the first attorney who had failed to follow up on his first conversation.
In fact, we recommend that experts put the following statement in their "Bill Practices Schedule."
Consultant shall not be committed to work for a client until retained. . .
Consultant agrees not to work for any other person or party involved in this case on matters relating to this case for two weeks after he is verbally retained, or upon acceptance of the retainer set forth below. Should two weeks lapse without receipt of a retainer, consultant is free to accept work from any other party.
This phrase has been inserted in many schedules to prevent an attorney from "knocking an expert out of a case" merely by talking with him.
A recent case, Nikkal Industries, Ltd. v. Salton, Inc. 689 F.Supp 187 (S.D.N.Y. 1988), in the District Court in New York agreed with this philosophy. In October 1987, the plaintiff contacted an expert in marketing concerning possible retention to do a marketing survey and to testify as an expert witness. They met and discussed essential issues of the case including prospective marketing techniques. The expert was not retained nor did he accept an offer of payment for his time involved in the meeting "since he felt his relationship with [the plaintiff] was insufficient to justify compensation." The expert was later retained by the defendant to testify concerning the reliability of the marketing research techniques offered by the plaintiff at trial.
The court identified the issue as "whether a party who has consulted with an expert, contemporaneously expressing an interest in possibly retaining him, but not doing so, is entitled to preclude the opposing party from utilizing the expert's testimony based on asserted privilege."
The court stated:
In considering whether [plaintiff] is entitled to its claim of privilege, the court will be guided by Supreme Court admonitions on the issue of privilege. In general, testimony privileges are not looked upon with favor by the federal courts. The reluctance to broaden the scope of privilege reflects a strong concern with the fundamental precept of American law. Our system of law recognizes that 'the public . . . has a right to every man's evidence.' Furthermore, 'these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the truth.'
The court concluded:
In reviewing the record there is no evidence that the meeting constituted anything more than an employment style interview. There was a flow of information which is essentially technical. [Plaintiff] itself characterizes the information as technical. [The expert's] suggestions to the plaintiff's counsel were technical and quite specific. Communications based on technical information as opposed to legal advice are not considered privileged. This conclusion is particularly appropriate in the instance case since [plaintiff] has utterly failed to show the court how this technical information is privileged.
Attorneys should thus limit discussions with prospective experts on matters which they do not want disclosed until such time as they have been retained.
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