Mock Trials and Expert Witnesses

Properly conducted mock trials and focus groups can be hugely beneficial in many ways. However, they are only as good as the information that is presented to the panel. In a case that may rely heavily upon a battle of experts, a party may wish to test how his expert performs and is received.

Assume for a moment your client wants to do that. But since experts are expensive, the client video records a simulated examination and cross-examination of the expert to play for the mock jury. Is that video now part of the expert’s job file that is discoverable? Some might withhold it from the file, content with the knowledge that it is unlikely opposing counsel will ever know about it. But what if the expert then reveals in his deposition that someone showed up to his office and made this video? What then?

The expert might argue the video is not part of his job file. However, the video was produced as part of his work in the case. Presumably he was paid for his time to participate in the video. That argument seems hollow. However, it might technically be an appropriate response to a subpoena if the expert does not have care, custody, or control over the video. However, the party does have care, custody, or control and a Rule 34 request for the video would also be appropriate.

Confronted with a Rule 34 request, some might also argue the video is attorney-client privileged. That argument is very hollow as there is no attorney-client privilege with an expert witness. Another argument is the video is protected by work-product because it was created at the direction of an attorney. This argument is probably the best of the lot, but seems tenuous. If you are using a disclosed expert, especially in a jurisdiction that has not adopted the 2010 federal amendments, there tends to be a general assumption that everything a retained expert does is discoverable. Even in the federal courts, the 2010 protections are narrowly construed, as previously discussed. Under either rule set, it is difficult to believe an expert’s mock trial presentation would qualify for the work-product privilege.

This was a real question from a real reader, but I do not know what resulted.