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Court Protects Plaintiff’s Presumably Unfavorable Expert Findings under Attorney Work Product Doctrine

Earlier this month, an appellate court applied the attorney work product privilege to protect the undisclosed findings of a plaintiff’s unused expert. In the case, Malashock v. Jamison, the court determined that a plaintiff does not waive the work product privilege when they initially designate an expert as one who will testify during the trial but then later determine not to have the expert testify at trial.

ATVThe Attorney Work Product Privilege

Most people have heard about the attorney-client privilege that acts to protect information conveyed to an attorney by his or her client in almost all cases. The attorney work product privilege is similar, in that it prevents an opposing party from obtaining certain information. However, unlike the attorney-client privilege, the work product privilege protects any information prepared in anticipation by a party’s attorney. For example, a memorandum written from an attorney to their client expressing concerns about weaknesses in the client’s case would almost certainly be protected.

A Plaintiff Discloses an Expert and Then Changes His Mind

In the case, Malashock v. Jamison, the plaintiff was injured while riding a utility vehicle that the defendant had sold him. The plaintiff filed a lawsuit against the defendant, claiming that the vehicle was unreasonably dangerous and not properly serviced. To help prove his case, the plaintiff designated four expert witnesses. One of the witnesses was to explain to the jury the forces involved in the accident and how the vehicle’s frame performed under the stresses of the accident. No specific information was released about the expert’s proposed testimony.

Just a few weeks later, the plaintiff informed the defendant and the court that he would no longer be using the expert. Presumably this was because the expert’s testimony was not as favorable as the plaintiff had hoped.

Hoping to capitalize on the expert’s testimony, the defendant asked the court to make the expert’s reports available to him and also to depose, or interview, the expert. The trial court agreed, and the plaintiff immediately appealed.

On appeal, the court explained that under the attorney work product privilege, information obtained or conveyed in anticipation of litigation is not subject to pre-trial discovery unless the privilege is waived. The defendant claimed that by releasing the name of the expert and the proposed area of his specialization, the privilege was waived. However, the court disagreed. The court noted that the privilege can only be waived intentionally and that by merely providing a name and an area of specialization, the privilege remained with the plaintiff. As a result of the rule, the plaintiff will not be required to release the unused expert’s reports, and the defendant will not be permitted to depose the expert.

Have You Been Injured in a Georgia Accident?

If you or a loved one has been involved in a Georgia car or truck accident, or any other type of accident, you may be entitled to monetary compensation. In many personal injury cases, an expert witness is necessary to establish certain facts beyond the knowledge of lay witnesses. It is very important that you select an attorney with a good network of reliable experts. Miller Legal Services, a skilled Georgia personal injury law firm, has a broad base of well-qualified experts and has cultivated many good relationships across the scientific and medical fields. Call 770-284-3727 to set up a free consultation with an attorney today.

More Blog Posts:

What Is Arbitration and How Can It Affect a Georgia Accident Victim’s Case?, Marietta Personal Injury Lawyer Blog, November 16, 2016.

Georgia Slip-and-Fall Plaintiff’s Case Dismissed Based on Defendant’s Lack of Knowledge of the Hazardous Condition Causing Plaintiff’s Fall, Marietta Personal Injury Lawyer Blog, November 2, 2016.