In many major commercial disputes, the parties will each rely on the evidence of at least one party-appointed expert to support their case. Indeed, expert evidence is often a decisive factor in a dispute, with those experts assisting a court or tribunal to navigate highly technical concepts. Because of the inherently complex nature of expert evidence, it is standard practice for the expert, legal counsel and party’s representatives to engage in collaborative discussions prior to the issue of final reports resulting in a variety of communications, instructions, draft reports and other expert work products.

It is sometimes assumed that such documents are inherently covered by legal litigation privilege, given that they are often created in consultation with legal counsel and form part of the general preparation of a party’s case in litigation. Indeed, parties are often content to proceed on the assumption that their respective communications with experts and the experts’ draft reports are not discoverable. However, whether legal professional privilege attaches to these types of documents to protect them from disclosure must ultimately be determined by considering the substance, or the ‘dominant purpose’, of each document. In international disputes, attention must also be given to the applicable substantive law of the dispute, given certain idiosyncrasies that have developed in different common law jurisdictions.

Unfortunately, there is no clear-cut answer as to whether privilege attaches to a particular document. This article examines the question of whether, and to what extent, privilege applies to expert work product, particularly in the context of international arbitration, and offers some practical suggestions for protecting communications with experts.

Jan-Mar 2019 issue

King & Spalding