Florida: Are privileged documents provided to an expert witness discoverable?

Matthew F. Havice, Esq. of Jimerson & Cobb in Jacksonville, FL, writes about an important subject involving expert witnesses. As a general rule, anything that an expert relies upon in the formation of their opinion is discoverable. In other words, the opposing parties have a right to review any documents or evidence upon which the expert has based their opinion. That includes documents that are considered privileged. A recent Florida Court of Appeals ruling, Mullins v. Tompkins, added clarification to the matter.

In summary, courts have the discretion to require the underlying facts/opinions used in forming an expert’s opinion to be disclosed prior to trial. If those facts or underling opinions are represented in documentation that would otherwise be privileged, the privilege is waived and the documents are discoverable. However, even if the expert had reviewed the documentation, if he or she did not rely on or use the information contained in the privileged documentation in forming their opinions that will be given at trial, the privilege has not been waived and the documents are more than likely undiscoverable.