By Julie Brook, Esq., reprinted with permission from CEB.
February 5, 2021
Important provisions to include in an expert retention letter agreement.
Billing. State the amount per hour the expert will be paid for his or her services. Also state that the expert will be reimbursed for reasonable and necessary out-of-pocket expenses incurred in connection with the engagement, such as travel, copying, postage, and courier costs. You may want to require prior approval for any single expense above a stated amount. Require that the expert keep records of time and expenses, and submit monthly invoices. You may also want to include what will not be reimbursed, e.g.:
Please note that you will not be reimbursed for overhead expenses, disbursements other than actual costs, meals other than reasonable travel meals, travel time other than time spent actually working on the Action, or any airfare other than coach.
As an independent contractor and not an employee of either _ _[Client]_ _ or _ _[Counsel]_ _, you will be responsible for any tax obligations arising from payment of your consulting fees.
Protection of documents, theories, and evidence. Require that the expert not disclose or use any privileged or confidential information, attorney work product, opinions, facts, data, or any other information other than as necessary to perform his or her engagement under the agreement.
Also include a statement like this:
All written or oral communications, and any written reports, documents, notes, summaries, or other materials generated by or for, or provided to, you in connection with the work performed under the terms of this Agreement are intended to be and will be confidential attorney work product and shall be marked “Privileged and Confidential Attorney Work Product” and become and remain the property of _ _[Counsel]_ _.
Require the expert to keep a separate file for all such documents and take all reasonable precautions to prevent unauthorized disclosure of confidential information.
Confidentiality obligations. Require the expert to execute an Undertaking of Confidentiality before having access to any information relating to the engagement, e.g.:
I acknowledge that I, _ _[Expert]_ _, will have access to confidential information supplied by _ _[Client]_ _ or _ _[Counsel]_ _ with respect to the Action, in the Superior Court of the State of California in and for the County of ______and any related litigation. I understand that such confidential information will be provided to me under the terms and restrictions in the _ _[date]_ _ engagement letter from Counsel (“Engagement Letter”). I further represent that I have been given a copy of and have read that Engagement Letter, and that I agree to be bound by all of its applicable terms. I also understand that all confidential information, and all copies, summaries, notes, and other records that may be made regarding such documents and/or information, shall be disclosed to no one other than the persons qualified under the Engagement Letter to have access to such information.
Remind the expert that these confidentiality obligations continue even after the engagement is completed or the action is resolved.
Other employment. The expert must agree that during retention in this matter he or she won’t accept any employment that’s adverse to your client or would conflict with your client’s interests in this matter. In addition, state that
no information provided to you by _ _[Client]_ _, its counsel, or other parties to the above-listed case in the course of this litigation shall be used for any purpose other than as set out in this Agreement, without _ _[Client]_ _’s express permission.
Not all provisions are appropriate for every case, but consider what to include and conform them to meet your client’s needs. For a sample expert witness retention letter agreement, turn to CEB’s California Expert Witness Guide § 7.32A.
On the ethics of expert fee arrangements, compensation of expert witnesses, and the recovery of expert fees as costs, check out CEB’s California Trial Practice: Civil Procedure During Trial §§ 4.43–4.44, 16.48–16.49, 27.59–27.61, 27.82.