previously retained a non-testifying valuation expert, which the plaintiff later attempted to call as a witness. The trial court excluded the testimony and the Supreme Court later upheld the exclusion holding “a communication made under the circumstances described by defendant’s counsel would fall within the privilege extended to a client for communications with his lawyer.” Id. at 516. However, the Brink case pre-dates codification of the Oregon Rules of Civil Procedure. Although the substantive rules appear similar, the nuances of a “representative of the client” today might have changed the outcome. Most notably, the protections may be different for testifying experts and non-testifying experts. The comments to OEC 503, regarding the definition of “representative of the lawyer” state: “The definition includes an expert who is hired to assist in rendering legal advice or to help in the planning and conduct of litigation, but not one employed to testify as a witness.” The comments are not substantive law themselves and offer no explanation for such a distinction, but practitioners should be aware a judge may hold the privilege does not apply to testifying experts. Finally, to the extent a non-testifying expert is in possession of facts, data or reports that could be presented without divulging communications with counsel, the opposing party could call the non-testifying expert as a witness to present such segregated information. State v. Riddle, 330 Or 471, 487 (2000). Recommendations In light of this dichotomy between discovery and trial in Oregon, I have several recommendations when dealing with experts. First, always be cognizant of your expert’s file. Everything going into your expert’s file should be considered and intentional, which means you should also warn your expert to be intentional. This starts the day of engagement and for some experts, I ask them in advance to create different files for factual investigation, mediation and litigation support work. During the course of the engagement, keep emails professional and brief, avoiding comments you would prefer not to become trial distractions. Members of the construction bar are familiar with a large trial during which the lawyer emailed an expert about preparation, referring to the empaneled jurors as “neophytes.” The email was later shown to the jury during cross-examination, pitched as a personal insult directed at the jurors themselves. Practitioners should avoid such email correspondence and should warn clients against creating such emails with experts as well. By the same token, make sure your expert is not deleting emails or other documents because it undermines credibility. In 2015, I cross-examined an expert in a large hotel case and the defense expert deleted his emails intentionally throughout the case. The court admonished the expert in front of the jury which hurt his credibility. Two years later, in a different trial over a very large apartment complex in the same county, I cross-examined the same expert who again deleted all of his emails. The court again admonished him in front of the jury and this time the jury was told this expert was previously warned not to delete emails. The court said if he did it again, he would be thrown out as an expert. Oregon’s “Expert Privilege” continued from p. 31 32 Trial Lawyer | Winter 2025
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