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Where a situation exists involving complex and technical litigation in the UK and US, a real danger arises if the same expert is used in both cases.
A case concerning patent disputes is currently pending in the US Federal Court and the English High Court which concern similar subject matter. Jones Day is representing the plaintiff in the US. The UK case is being brought on behalf of the same plaintiff by the UK solicitors.
Because of the technical nature of the subject matter, some expert witnesses are to be used to give evidence in both sets of proceedings.
In the English action, the opposing party is entitled to receive expert witnesses' statements, disclosing the evidence they are expected to give at trial. The opposing party is not entitled to discover what documents and other information have been disclosed to the expert witnesses. All such information is privileged, and is not subject to discovery.
Under the Federal Rules of Civil Procedure, which govern the US proceedings, no such general rule of privilege applies. Testifying experts may be called to give pre-trial depositions and the opposing party is entitled to discover all the facts known to and documents seen by those experts.
In a case where the same expert witnesses are to give evidence in US and UK proceedings, there is an irreconcilable conflict between these different rules. As the Federal District Court judge hearing Jones Day's case in the US ruled, the facts known to expert witnesses who are to testify in the US proceedings must be disclosed in the US, notwithstanding that they are privileged in the UK.
UK lawyers should be on guard in cases where the choice of an expert witness could expose privileged information to the opposition's lawyers in US proceedings. The wisest course of action is to retain separate expert witnesses to testify in the UK and US proceedings.
Jane Wessel is with Jones Day Reavis & Pogue in London.