Page 25 - Expert Witness

Expert Witness Reporting and Spoliation

Spoliation is an intentional act to improperly destroy, alter, or conceal evidence. A finding of spoliation
is serious and may result in significant undesirable consequences to the practitioner and his or her client.
This concept is particularly relevant for the practitioner to consider in connection with the preparation
and retention of expert report drafts. Accordingly, the practitioner should discuss with the client’s attor-
ney the protocols to be followed and potential implications of the Federal Rules of Civil Procedure on
drafts and attorney communications to avoid accusations of spoliation. This includes an agreement about
the definition of a draft document for the particular case. In certain cases, legal counsel representing the
disputing parties will agree that drafts of expert reports are not discoverable. However, to be safe, the
practitioner may elect to save drafts and provide them to the client’s legal counsel for the attorney to
make a determination regarding production to the opposing party. fn 12

Contractual Agreements

The practitioner may be asked to execute and comply with contractual agreements as part of his or her
forensic litigation services. This is common for certain types and forms of ADR. Contracts also are ex-
pected in circumstances when privacy is important and confidentiality orders are not in place. In such
cases, the practitioner may be asked to sign a confidentiality or nondisclosure agreement to protect con-
fidential and proprietary information of the parties to the dispute. Similar to confidentiality orders, the
practitioner must ensure that such arrangements provide for the retention of work product and working
papers to comply with the document retention policy. The practitioner also may want to consider seek-
ing the advice of his or her legal counsel before signing such contractual arrangements, especially if
such arrangements provide for the provision of work product to third parties when such provision might
constitute a waiver of privilege.

Expert Witness Malpractice

Although cases of financial expert witness malpractice are not common, the practitioner should be aware
that his or her standard of care can be challenged. An expert witness cannot be sued by an opposing par-
ty for expert witness testimony; however, the practitioner’s client can ask the court to review the stand-
ard of care used by the expert witness and his or her adherence to professional standards. This right was
established by the appellate court in Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392
(1994).

Discovery

Discovery takes place in the time between filing the original pleadings (the complaint and answer) and
beginning the trial. Discovery is the attempt to find out the facts and theories of the other party(ies). The
practitioner collects the necessary facts, analyzes the facts, develops any assumptions, and reaches a
conclusion.

This is a very important area for the practitioner to manage. Usually, litigation attorneys have multiple
cases running at one time. As a result, their schedules get hectic, and they will rely on the practitioner to
maintain the follow-up and constant reminders needed to keep the discovery process moving. In many

fn 12 Effective December 1, 2010, Rule 26 of the Federal Rules of Civil Procedure was amended to provide that draft reports of experts
are no longer discoverable.

© 2020 Association of International Certified Professional Accountants 23