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U.S. Circuit Court Decision on Expert Witnesses

In a summary overview article from Morris, Manning & Martin LLC, a recent and significant U.S. Appellate Court decision applying to expert witnesses’ work product is reviewed...
January 8, 2014

In a summary overview article from Morris, Manning & Martin LLC (MMM), a recent and significant U.S. Appellate Court decision applying to expert witnesses’ work product is reviewed. The sum and substance of the point argued and litigated was that the work records/product developed by an expert witness in preparation for their testimony is protected from discovery, because it is part of the overall attorney-client legal document file, and therefore privileged. Unfortunately, the court held that experts are required to produce “all materials considered by the testifying expert, except the core opinion work-product of attorneys."

What It Means to Agents: E&O claims and litigation many times include an expert witness, and a number of these agency-expert witnesses are PIA members. Therefore, this opinion underscores the importance that from the outset, it is critical for the agency to closely work with their E&O counsel, along with the agency carrier that may be involved with their counsel; and having the E&O and carrier counsel formally integrate any needed expert witness to maximize protected status for as much of the work product of the expert as possible. As MMM advises: “The Eleventh Circuit’s opinion in Republic of Ecuador highlights the need for clients to work closely with outside counsel to devise methods to prevent discovery of work product generated by expert witnesses for litigation.”

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