In an article published in the New York Law Journal, Bass, Berry & Sims attorney Jessie Zeigler and Nixon Peabody attorney Joe Ortego discussed the importance of appropriate legal response in the aftermath of a crisis. In the immediate aftermath of a crisis, it is vital that attorneys and their clients understand that they may be preparing for potential litigation and should start developing strategies to minimize the company’s liability. One of the critical first steps is to ensure that the appropriate experts investigate the scene, preserve evidence and potentially prepare an expert report, whether they are in-house experts, outside experts or both.
Attorneys must determine whether a particular expert’s findings and communications will be privileged or disclosed and take the appropriate steps depending on the preference. They must also consider whether that expert may later be designated as a testifying expert and, if so, whether an expert report may be required for any ensuing litigation.
The authors outlined the following considerations when handling experts in preparation for potential litigation in the aftermath of a crisis:
- Preparation and disclosure of investigation reports and/or Rule 26 expert reports, which vary depending on the laws of jurisdiction and whether the case is in federal or state court.
- Reporting vs. non-reporting (fact) experts, which can be less than clear based on previous court decisions.
- Determining whether expert communications are privileged to conclude whether attorney-expert communications are discoverable.
- Crafting a crisis response plan to be prepared before a crisis occurs.
“It can be tempting to try to obtain as much information as quickly as possible during times of crisis, but you must consider the potential implications on discovery when retaining and working with an expert, whether that expert is in-house or a retained outside consultant,” said Jessie and Joe. “Companies in industries prone to major accidents, such as industrial manufacturing, should have a crisis response plan in place before the accident occurs. The plan should consider what experts may be contacted to assist with the immediate investigation, and take steps to ensure any findings, reports and communications are kept privileged if and as desired.”
The full article, “Experts in Times of Crisis,” was published by the New York Law Journal on May 20, 2019, and is available online. Bass, Berry & Sims associates Courtney Hunter and Sarah assisted in the preparation of this article.