Consulting Experts vs. Testifying Experts

Texas Consulting Experts

Experts are a vital part of most litigation in Texas. There are generally two types of experts used in the litigation process: testifying experts and consulting experts. “A testifying expert is an expert who may be called to testify as an expert witness at trial. A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert.” Tex. R. Civ. P. 192.7.

Complete discovery of testifying experts is allowed under Texas Rules of Civil Procedure 192.3(e), 192.5(c)(1), and 194.2(f). However, material prepared and mental impressions of consulting experts are protected under the work product privilege. Tex. R. Civ. P. 192.5. It is important to note that privilege can be lost for consulting experts should a testifying expert review any work prepared by the consulting expert.

Case law surrounding privilege related to consulting experts is still developing in Texas, but Texas has generally accepted the Kovel Doctrine as articulated in United States v. Kovel. United States v. Kovel 296 F.2d 918 (2d Cir. 1961). Central to protecting the consulting expert’s opinions are that the communication from the consulting expert be made for the purpose of obtaining legal advice. The work of the consultant should aid the attorney in providing legal advice. Id. However, an attorney directly hiring or placing certain professionals on payroll is not dispositive of retaining consulting privilege. Id. Additionally, copying attorneys on communications between consultants and clients does automatically keep such communications privileged.

Best practices in maintaining a consultant’s communications privileged might include (1) the attorney retaining the consultant, (2) making clear in the engagement agreement that the consultant is being hired for the purpose of the attorney providing legal advice, and (3) the consulting expert primarily communicating through the attorney. It is also important to remember that designating someone with knowledge of facts of the case as a consulting expert will not allow privilege to be maintained.

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