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Ex parte communications with adverse expert witnesses

Based on a brief survey of the Maryland Lawyers’ Rules of

Professional Conduct it is clear that there is no rule that expressly deals with the issue of ex parte communications with adverse expert witnesses.

Further, though Federal Rule 26(b)(4) and

Maryland Rule 2-402 both provide guidelines concerning expert witnesses and discovery, none seem to directly contemplate the scenario in which counsel seeks to contact an adverse expert witness outside the presence of the other party. Tough one Maryland district court suggests that the Federal Rules of Civil Procedure dictate that an attorney may not contact an adverse expert witness,3

Easton provides an apt analysis of amendments to the rule and argues that such an interpretation is incorrect and a “stretch.”4 Despite Easton’s argument that ex parte communication with expert witnesses is permissible, it appears from case law that such contact is not advisable. Tere is one notable Maryland decision in which the issue

of attorney communication with an adverse expert witness is discussed. In Sewell v. Maryland Department of Transportation, the Plaintiff ’s attorney wrote a letter to the medical expert, Dr. Lion, retained by the State in which he threatened to sue the doctor for defamation on behalf of his client. Sewell, 206 F.R.D. 545, 546 (D. Md. 2002). After this initial contact the Plaintiff ’s attorney made repeated calls to Dr. Lion asking that he call him back. Id. Further, Defense counsel indicated that Plaintiff ’s attorney and Dr. Lion had a conversation in which they discussed Dr. Lion’s medical evaluation of the Plaintiff as well as his expert report. Id. Te court noted that “conduct of plaintiff’s counsel in regard to Dr. Lion has been totally inappropriate” and found that counsel’s “communications with Dr. Lion violated Rule 26(b)(4) of the Professional Rules of Conduct and “implicated Model Rule 3.4(c) of the Model Rules of Professional Conduct.” Id. at 547. Federal rule 26(b)(4)(A) identifies the process by which an attorney may depose an individual. Rule 3.4(c) prohibits attorneys from “knowingly” disobeying and “obligation under the rules of the tribunal.” Tus, as Easton suggests, in determining that counsel’s conduct was impermissible the court bases its decision on rules that indirectly address the issues at hand. Whether or not its decision is a “stretch” is a question that seems ripe for further debate.

3 See Sewell v. Maryland Department of Transportation, “As noted by the Ninth Circuit in Erickson v. Newmar Corp., 87 F. 3d 298, 302 (9th Cir. 1996), there is little case law on the issue of ex parte contact with an opponent’s expert, ‘possibly because the violation seldom happens…. Id.,’ or put another way, the vast majority of attorneys are sufficiently cognizant of their professional responsibility to avoid such an error. Te Court calls Mr. Millstein’s attention to Formal Opinion 93 – 378 of the ABA Committee on Ethics and Professional Responsibility entitled “Ex Parte Contacts with Expert Witnesses,” where in the committee notes that such conduct in a federal case violates Fed. R. Civ. P. 26(b)(4) and in any case (federal or otherwise) it implicates Model Rule 3.4(c) of the Model Rules of Professional Conduct”. Sewell, 206 F.R.D. 545,547 (2002).

4 Stephen D. Easton, Can we Talk? Removing Counterproductive Ethical Restraints upon Ex Parte Communication between Attorneys and Adverse Expert Witnesses, 76 Ind. L.J. 647, 677 (2001)(“Although no Model Rules provision prohibits ex parte contact with adverse retained experts, several courts and other professional responsibility authorities have attempted to stretch inapplicable provisions to ban such contact. Examined carefully, none of these provisions can legitimately be the basis such a ban”). Easton also adds that amendments to Federal Rule 26(b)(4) suggest that it was not intended to apply to “informal information gathering”. Id. at 693-694.

Trial Reporter / Winter 2012 45

Biography Bill Day is a highly successful litigator in employment

a law review article written by Stephen D.

discrimination and federal employment law. Mr. Day has a proven track record in U.S. Court of Appeals cases, U.S. District Court jury trials and hearings, federal administrative hearings and appeals, and settlement agreements with federal agencies. Having devoted his entire legal career to public interest law, Mr. Day fights for people who face discrimination based on their race, sex, age, disability, or national origin. Mr. Day is known for his highly effective representation of federal employees at the Martinsburg, WV Veterans Affairs Medical Center (VAMC); U.S. Department of the Navy's Naval Sea Systems Command (NAVSEA); U.S. Department of Homeland Security; and U.S. Department of Agriculture. Mr. Day joined Gebhardt & Associates, LLP in 1998 and works at the partner level. Lucy R. Hirsch received her B.A. from Haverford College

and her J.D. from the University Of Maryland School Of Law. Prior to joining the law firm of Lebau & Neuworth, LLC, she clerked for the Honorable Gale E. Rasin of the Baltimore City Circuit Court. She is currently an associate with Lebau & Neuworth and focuses her practice on employment law matters. She is a member of MAJ, the Maryland State Bar Association and the National Employment Lawyers Association (NELA).

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