MEMBER FIRM OF
USA December 23 2011
In United States v. Sierra Pacific Industries, No. 09-2445, 2011 WL 5508864 (E.D. Cal. Nov. 8, 2011), the court held that one plaintiff’s designation of an expert for testimony waived privilege over a second plaintiff’s communications with that expert. In this case, plaintiff California Department of Forestry and Fire Prevention (“CalFire”) entered into a joint prosecution agreement with plaintiff United States. Expert White prepared a report for CalFire in 2008, and thereafter was employed by CalFire as a litigation consultant in a related state court proceeding. CalFire did not designate White as a testifying expert in either proceeding. The United States, however, designated White as a testifying non-paid, non-reporting expert witness in the federal action. Defendant sought discovery of all documents reviewed by White relating to his report, including communications with CalFire prepared in his capacity as a consulting expert. CalFire argued that privilege over communications with White as a consulting expert were not waived as a result of the United States’ decision to designate White as a testifying expert. The court noted that CalFire had voluntarily entered into the joint prosecution agreement. Canvassing the case law relating to joint agreements, the court held that the United States’ designation waived CalFire’s privilege for any materials that could “reasonably be viewed as germane to the subject matter on which the expert has offered an opinion.” Where an expert wears two hats – one as testifying expert and one as litigation consultant – any ambiguity is resolved in favor of the party seeking discovery.
