Battle over whether communications between counsel and his testifying expert are discoverable is heating up.

In a case of first impression, on September 16, 2010, Judge Olsen ruled that a party may obtain written communications between counsel and his testifying expert. The court held that a party is entitled to the discovery of information that would enable them to ascertain whether a testifying expert's opinions are those of his own or whether the testifying expert merely intended to parrot what he was told by counsel. HOWEVER, on November 19, 2010, the Superior Court, in a decision without published opinion, granted a Petition for Reargument, and the prior opinion filed by Judge Olsen has been withdrawn.

Case Law Alert - 1st Qtr 2011