When looking toward the eventual production of the expert file, be prepared for all arguments. If possible, segregate the portions of the file you might argue should be excluded under the mediation protection of ORS 36.222 and identify, in advance, any emails you would argue should be omitted based upon privilege. Many experts operate in small offices and the files might be large and complicated. Give your expert sufficient advance notice of the file gathering process as well as your requests for any segregated materials, so the expert has time to gather the file. Finally, ensure you submit Motions in Limine focused on experts. You should request a formal ruling on advance production of expert files if you want opposing expert files in advance of the testimony. You should identify any portions of the file you would like to have excluded as mediation communications or as privileged and submit specific motions briefing this issue for the court to rule upon in advance. If you hired any experts that will not testify, consider presenting a motion to exclude such testimony as privileged under Brink. Parting Thoughts Oregon’s nebulous “expert privilege” should be viewed as a trap for the unwary, especially when it comes to presentation of expert testimony at trial. Perhaps it is time to discuss a foray into expert discovery, or at least some concrete rules for expert trial file production. That is a question for another article. For now, a working knowledge of the landscape together with some advance precautions will help mitigate risk. “[M]ake sure your expert is not deleting emails or other documents, because it undermines credibility.” 33 Trial Lawyer | Winter 2025
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