Tuesday, July 21, 2009

Documents Maintain Privilege Status Even When Disclosed to Testifying Expert

In Mullins, D.M.D. v. Tompkins (1D09-1148), the First District granted certiorari and quashed the trial court's order requiring the production of documents that were provided to a testifying expert.

The documents in question were described by the court as: "Dr. Mullins’ counsel described the materials in controversy as letters from counsel (to Dr. Mullins and her malpractice insurer, whom he also represented) which included counsel’s evaluations of claims and defenses; and as e-mails and other correspondence from Dr. Mullins to him in which she explained in detail and commented on Ms. Tompkins’ care and treatment."

The court held that: "The principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party’s own expert...Even when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence...

Even assuming that work product and privileged communications provided to an expert witness become discoverable if used as a basis for the expert’s opinion, there has been no such showing here.


Post a Comment