When you provide privileged materials to an expert witness, you waive the privilege, right? Not necessarily. Although Arizona courts traditionally have employed a bright-line rule that communications with a designated expert witness are fair game for discovery, the Court of Appeals has recently recognized an escape hatch in the rule. Litigants may now “unring the bell” by revoking an expert witness designation and thereby shielding from discovery the information and materials shared with the former expert.
The Expert Waiver Rule
The Rules of Civil Procedure make a marked distinction between litigation consultants and expert witnesses. Consultants (i.e., persons hired to assist a party with the litigation, but who are not expected to testify at trial) fall within a party’s work product protection. Consequently, Rule 26(b)(4)(B) provides that consultants are generally immune from discovery except “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”
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