Consider this not unimaginable scenario: Opposing counsel calls for production of a confidential memorandum that details your impressions of the case and trial strategies. This is clearly protected as core work product, right? Not necessarily. In fact, if you shared the memo with your testifying expert in a federal court case, the answer is “probably not.”
Perhaps even more troubling is the following situation: On cross-examination, your expert is asked to reveal the content of confidential oral communications between you and your client to which he was privy in his capacity as a testifying expert. Once protected by the virtually impenetrable shroud of the attorney-client privilege, these types of communications also may now be discoverable if the testifying expert “considered” the information in forming his opinions. See Fed.R.Civ.P. 26(a)(2)(B).
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