The Expert Witness Confidentiality Challenge
Expert witnesses face unique confidentiality dynamics not present in typical professional services engagements. You'll receive sensitive case materials, form opinions based on privileged information, and potentially discuss your work under oath. Standard NDA templates aren't designed for this context.
Key Considerations for Expert Witness NDAs
Your confidentiality agreement should address:
- Litigation privilege: Case materials shared by counsel may be protected by attorney-client privilege or work product doctrine. The NDA should acknowledge your role in maintaining these protections.
- Discovery obligations: As a testifying expert, you may be required to disclose your opinions, bases, and communications with counsel. The NDA cannot prevent court-ordered disclosure.
- Protective orders: Cases often have court-issued protective orders governing confidentiality. Your NDA should defer to these orders.
- Third-party information: You may receive confidential information about non-parties. Your obligations to protect this information may differ from case materials.
- Document retention: Federal and state rules have specific requirements for document retention and destruction. Your NDA should align with these requirements.
What Should Be Protected
An expert witness NDA typically protects:
- Case strategy: Counsel's theories, strategies, and work product (though this may be discoverable for testifying experts)
- Non-public case information: Facts and documents not part of the public record
- Third-party confidential data: Medical records, financial documents, trade secrets produced in discovery
- Preliminary opinions: Draft reports and early analyses (note: drafts may be discoverable post-2010 FRCP amendments)
- Fee arrangements: Your compensation terms and billing history with the client
Discovery Carve-Outs
Your NDA must acknowledge that confidentiality obligations yield to litigation requirements:
- Subpoenas and court orders: You must comply with valid legal process, though you should provide notice to the retaining party when possible
- Deposition testimony: You may be required to answer questions about case materials and your analysis
- Expert report requirements: Federal and state rules require disclosure of opinions, bases, data relied upon, and other specified information
- Cross-examination: At trial, you may need to discuss your entire engagement and analysis
Conflicts and Future Engagements
Expert witness NDAs should address potential conflicts:
- Adverse engagements: Can you later work for the opposing party in this case? In related cases? In unrelated cases?
- Confidential information use: Information learned in this engagement shouldn't benefit opposing parties in future matters
- Disclosure of prior work: You may need to disclose this engagement in future matters to assess conflicts
- Duration of restrictions: How long do conflict restrictions last after the engagement ends?
Document Handling and Destruction
Expert witness engagements require careful document management:
- During engagement: Secure storage, limited access, no disclosure without authorization
- After engagement: Return or destruction of materials as directed by counsel
- Litigation hold: If litigation is ongoing or anticipated, document destruction may be prohibited
- Personal notes: Your notes and working papers may be discoverable - understand what you can and cannot destroy
Professional Ethics Considerations
Many expert witnesses are licensed professionals with ethical obligations that may affect confidentiality:
- Medical professionals: HIPAA and state medical privacy laws apply to patient information
- CPAs: AICPA ethics rules govern confidentiality in forensic engagements
- Engineers: Professional engineering ethics may apply
- Attorneys serving as experts: May have additional ethical considerations
Your NDA should acknowledge that professional ethical obligations apply alongside contractual confidentiality.