Does Your Litigation Expert "Write-Over?"

If you are not already asking this question of your consulting or testifying expert, you should start.  And the answer in every case should be "no."  Many people, including experts, make revisions into an original draft document, thereby "writing over" the initial draft.  Once a draft has been written  over, the electronic version of the initial draft has effectively been destroyed.  However, electronic preservation rules apply to draft expert reports and communications, and attorneys have an ethical duty to ensure that these electronic documents are not destroyed.   


In a recent article, the ABA suggests that it is a good practice to instruct the expert in writing (ideally in the engagement letter) to preserve draft documents and communications.  Once a consulting or testifying expert has "published" a preliminary draft by sending it to the attorney for review, the expert should preserve that version and create a new document for any revisions.  And so on for each subsequent draft.  The attorney should also save each draft in both electronic and hard-copy versions.  This practice ensures that any future fight over the discoverability of the draft expert reports and communications will concern only the production of the documents, rather than a motion for sanctions involving the destruction or alteration of the documents.   

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