Many years ago, we represented a client in a quandary. (We know, we know: that’s pretty much always the case.) The product had been sold for many decades, the early history was important in marshalling a defense, and there were no employees around who were percipient witnesses. What was the solution? We made an employee an expert on the history of the product. Voila! The good part of that approach is that the witness would be free to talk about product issues predating his involvement (or, indeed, his birth). The bad part was that much of the preparation work with the now-expert might no longer be shielded by the attorney-client privilege.
Federal Rule of Civil Procedure 26(a)(2) addresses that odd creature of the expert witness who was not retained or specially employed to provide expert testimony. Think of, as in the instance mentioned above, a company employee whose job is mostly not devoted to rendering expert testimony. Or think of treating physicians. Rule 26(a)(2)(B) provides that an expert witness must provide an expert report “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” By contrast, Rule 26(a)(2)(C) provides that for witnesses who are not required to provide a written report – i.e., those not included in Rule 26(a)(2)(B) – the proffering party need only disclose the subject matter of testimony and “a summary of the facts and opinions to which the witness is expected to testify.” We all know that treating physicians do not need to provide expert reports. We couldn’t make them do it. We probably could make employee/experts do a report, but under Rule 26(a)(2)(B), we don’t need to do that. But to what extent does the attorney-client privilege shield our prep work with that employee/expert under that rule?