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In Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, the Court of Appeal stated that where counsel retains an expert consultant with confidential information concerning the opponent’s case, there is a rebuttable presumption that the expert shared that confidential information with the counsel that retained him or her, which requires disqualification.  See Evid Code §606 on the effect of a presumption.  To prevent disqualification, the presumption must be rebutted with an affirmative evidentiary showing that no confidential materials were transmitted.  This showing has been met by including the writings that were transmitted and what topics were discussed verbally, which would demonstrate that the offending material was not transmitted. However, be mindful that it is not just the precise materials, but also the benefit of the confidential materials that must be rebutted:
Continue Reading The Other Side Retained My Consultant–Should They Be Disqualified?

Have you ever wondered how the work product doctrine works when you hire a consultant who may or may not become your expert. Trial Attorney Lee Previant, from Los Angeles, wrote this great article titled “Attorney Work Product Doctrine And Experts“ for Advocate Magazine that explains how it all works.  Enjoy.

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As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation.  Likewise, communications with your expert witnesses are necessary.  This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion.  In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him[/her] as an expert on the subject to which his[/her] testimony relates.”  (Evid. Code § 720.)

Continue Reading An Attorney’s Relationship with their Expert and the Work Product Doctrine