Page 21 - Civil Litigation

• Orders to compel discovery or production that require a response to a valid discovery request.

Internal Literature

In addition to the standards and guidance of the AICPA, many practitioners have internal training and
guidance for the acceptance and provision of civil litigation services. Practitioners should consider care-
fully any internally prepared guidance related to the acceptance and provision of civil litigation services
because this guidance may be subject to discovery by opposing parties in cases when the practitioner is
serving as an expert witness.

Other Civil Litigation Services Considerations

General Considerations

Legal Privilege

When engaged to serve as a litigation consultant, the practitioner’s communications, work, and work
product may be subject to certain legal privileges. fn 31 Privilege is an evidentiary rule that gives the cli-
ent or attorney, or both, the option to not disclose a fact or information asked for by the opposing party,
although it might be relevant in litigation (especially when the information was originally communicated
in a professional or confidential relationship). The practitioner should be mindful that the privilege be-
longs to the client. Privilege applicable to a practitioner typically falls into one of the following catego-
ries:

• CPA (accountant)-client privilege. fn 32 The protection afforded to a client from an accountant’s
unauthorized disclosure of materials submitted to or prepared by the accountant.

• Attorney-client privilege. The attorney’s client’s right to refuse to disclose and to prevent any
other person from disclosing confidential communications between the client and the attorney.

• Attorney work-product privilege (rule or doctrine). The rule that provides for qualified immunity
of an attorney’s work product from discovery or compelled disclosure.

• Trial-preparation protection for communications between a party’s attorney and expert witness-
es. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any wit-
ness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communi-
cations, except to the extent that the communications

— relate to compensation for the expert’s study or testimony;

fn 31 It is important for the practitioner to discuss with the client’s attorney to what extent the practitioner’s communica-
tions, work, and work product are to be protected by legal privilege because it will dictate communications and how the
work is directed, documented, and disclosed. In instances where legal privilege will be, or may be, asserted, the practition-
er should confirm communication and documentation protocols, identify work product on its face as privileged, and con-
sider including this understanding in the engagement letter.

fn 32 CPA (accountant)-client privilege varies widely among federal, state, and local jurisdictions.

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