For those of us who have done credit expert witness work for many years we remember the day when expert report drafts were discoverable. Experts and lawyers would play cat and mouse games and rather than fax or email expert report drafts back and forth they’d find another way to review draft reports before submission, all in an effort to keep drafts out of the hands of opposing counsel.
I myself had a more effective, and completely organic, process when I’d write my expert reports…I don’t keep drafts. I write over existing versions and after writing so many reports you don’t find yourself “drafting” them as much as you are simply writing them. Thankfully expert report drafts are no longer discoverable so this is all academic.
But, the question of expert report confidentiality remains. Can opposing counsel ask you to provide expert reports written for other cases? Sure they can. They can also ask for a complete list of all of your cases where you’ve written a report.
Now, that doesn’t mean they’re going to get what they want. In many of my cases I’m asked to sign protective orders. And, because my reports almost always contain specific consumer credit file information and industry testimony that’s covered by protective orders I am of the opinion that my reports are confidential pursuant to the protective order. Further, in all of my retainer agreements I include a Confidentiality paragraph that says I will not disclose the reports, declaration or affidavits for that particular case unless ordered to do so by the court. This essentially makes all of my reports “Confidential Information” which I can’t disclose to a 3rd party simply because they’ve asked for it.
This is also quasi-academic because the opinions you’ve had should be consistent across cases. Assuming all else is equal, and it rarely is, then “Act #1” should be problematic in case #50 just like it was problematic in case #75. If you’re an expert whose opinions are for sale and vary based on who has hired you, then you probably don’t want old expert reports exposed.
Many credit damage experts who do work only for Plaintiffs have a problem with this issue. Their opinions lock them into doing work for consumers only and never for any party on the industry side. This pigeon hole method of expert witness work is not only bad for that expert’s business but also bad for their reputation as the industry is rarely the cause of a consumer’s poor credit and subsequent issues because of said poor credit.
Still, some Plaintiff’s only expert witnesses will never take an adverse position to a consumer because, frankly, they can’t. If they’ve testified many times that late payments always hurt someone’s credit then they cannot all of a sudden testify that Bank A’s late payment reporting did not hurt a consumer’s credit.
Balls and strikes people! You’re being hired to tell the truth..not to tell someone what they want to hear.
Credit Reporting Expert Witness, John Ulzheimer, is the President of Consumer Education at SmartCredit.com, the credit blogger for Mint.com, and a Contributor for the National Foundation for Credit Counseling. John is twice FCRA certified by the credit industry’s trade association. He is an expert on credit reporting, credit scoring and identity theft. Formerly of FICO, Equifax and Credit.com, John is the only recognized credit expert witness who actually comes from the credit industry and has worked for a credit bureau and a credit score developer.