The Florida Court of Appeals has determined that an expert witness who is not testifying at trial does not have to answer questions at a deposition by the opposing party, even if that expert has produced documents during the pre-trial phase. The case, Rocca v Rones, featured a plaintiff who hired an accounting expert witness to assist him in a lawsuit over the sale price of a business. The plaintiff’s expert prepared an accounting report, and was scheduled to testify at trial before the plaintiff withdrew him as a witness when the defendant announced the intent to question him. The expert was initially ordered to appear in a deposition, but, at advice from the plaintiff’s attorneys, he refused to answer questions about the materials he produced for his clients.
The plaintiff argued that his non-testifying expert witness did not have to answer questions at a deposition because the information he had was protected under Florida’s work product law – which keeps private expert witness materials produced in preparation of trial unless the opposing party can show exceptional circumstances. Judge Leslie B. Rothenberg of the Florida District Court agreed, and determined that the non-testifying expert witness did not have to respond to questions about materials he prepared in anticipation of trial because the materials were considered work product. Judge Rothenberg determined that the defendant had not shown the required exceptional circumstances to compel a non-testifying expert witness to testify about pre-trial matters, and kept the plaintiff’s accounting expert out of the defendant’s deposition.
This case provides an interesting contrast to the Republic of Ecuador v Hinchee case discussed here last week, which determined that under federal law expert witness materials were not protected by work product privilege rules. The key difference between federal law and Florida law is the specific mention of expert witnesses as parties whose communications are protected by work product privilege. Under Florida’s work product rule, communications with, and materials prepared by, expert witnesses who meet certain qualifications are specifically protected from the eyes of an opposing party.