The 'Communications with Expert Witnesses Privilege' Explained

Communications with expert witnesses privilege is designed to protect expert witnesses who are not testifying in court. Generally, the privilege communications protection that covers individuals who are clients of attorneys also extends to expert witnesses who aren't going to be testifying. This protects witnesses from causing undue legal harm to attorneys' clients. Without this form of communications privilege, experts may be unwilling to assist attorneys or clients may be unwilling to talk to outside experts since it can risk the court having access to these conversations.

Generally, communications technologies aren't a violation of privilege because they are not technically witnesses to privileged conversations, but merely a conduit or method enabling the conversations to happen.

What is 'Communications with Expert Witnesses Privilege?'

Communications with expert witnesses privilege provides protection to expert witnesses and the clients of attorneys. Specific conditions must be met before communications can be counted as privileged. For instance:

  • Must be in a protected relationship: Attorney-client, husband and wife, physician-patient, counselor-client, and a few other personal and professional relationships are generally recognized as protected by privilege with communications. Experts, acting as agents of attorneys or their clients, typically meet the protected relationship standard.
  • Must take place in a private setting: As long as the communications are kept private and don't occur outside of a private setting, the communications do uphold the privacy standard.
  • Must not be shared with a third party: Once the communications are shared with a third party, the privacy standard is violated and privileged communications lose their privileged status.

Expert witnesses, when they are working with an attorney or the attorney's client, often have normal conversations that meet these standards.

What Does 'Communications with Expert Witnesses Privilege' Mean?

Here are a few key definitions:

  • Expert witness: Generally, someone called by an attorney to assist with a court case. An expert in a specific field who has knowledge the attorney or client may find useful---this person is a resource and can help explain important terms and concepts to the attorney as they communicate with the client and prepare the best possible case.
  • Self-incrimination: The risk of or act of exposing yourself to criminal prosecution or charges. Individual witnesses and clients have a privilege to protection from self-incrimination, as does anyone in the US---the Fifth Amendment to the US Constitution protects people from being forced by the government to self-incriminate.
  • Testifying: Experts often go on-record with their input on a case for the entire court to count as evidence. If the expert is not testifying in a case, they generally are doing work that could include privileged communications with the client or attorney.

Communications with expert witnesses privilege means that conversations between attorneys, expert witnesses, and clients have an expectation of privacy as long as certain conditions are met. Without these conditions in place, the interested parties must either wait for a better opportunity to converse together safely or they must avoid discussing private and highly personal details in their conversations.

How Does 'Communications with Expert Witnesses Privilege' Work?

In practice, for these communications to remain protected, conversations generally occur in specific places such as personal offices and homes. Privacy is one of the main conditions that must be in place for conversations to be considered privileged. If any part of privilege is violated, then the conversation is no longer protected. Conversations can also occur via communications software.

How Does It Relate to CCaaS, UCaaS, and VoIP Software?

Communications software such as CCaaS, UCaaS, and VoIP doesn't violate privilege. As such, expert witnesses, attorneys, and clients are safe when using a communications system for a conversation.

How Can Organizations Protect Their Communications?

Communications with expert witnesses is generally protected as privileged information and conversations. This is to protect clients against self-incrimination, which can occur if clients are expected to testify against themselves. To prevent testifying against oneself, the Fifth Amendment protects people against self-incrimination and one of the legal implications is the fact that communications have privilege in some instances.

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