Until December 10, 2010, lawyers need to remain aware that, in cases pending in federal court their communications with their retained expert witnesses and any draft reports prepared by the expert are likely to be discoverable based on a request from opposing counsel.
The expert rule changes which become effective on December 10 will give
An accountant who had prepared financial statements did not need to be designated as an expert witness in order to provide testimony regarding those financial statements, per the Business Court’s ruling in A-1 Pavement Marking, LLC v. APMI Corporation, 2009 NCBC 15 (N.C. Super. Ct. June 26, 2009). The opinion also discusses generally accepted accounting principles ("GAAP") relevant to financial statements of consolidated entities.
The issue in A-1 was Plaintiff’s calculation of a bonus due one of the Defendants, which was to be based on Plaintiff’s gross profits. The Plaintiff’s consolidated financial statements had eliminated a significant receivable due from a subsidiary. The Defendant asserted that his bonus would have been substantially higher with the inclusion of that receivable in the gross profit calculation, and brought a claim under the North Carolina Wage and Hour Act.
The Plaintiff moved for summary judgment, relying on an affidavit from the accountant who had prepared the financial statements on which the calculation was based. The Defendant objected to what it termed "improper opinion testimony," and argued that the accountant had never been designated as an expert witness.
Judge Diaz rejected the argument that the accountant was an undisclosed expert who shouldn’t be allowed to testify, holding: Continue Reading Accountant Who Prepared Financial Statements Didn’t Need To Be Designated As An Expert Witness In Order To Testify
This short Order has a valuable nugget on the discoverability of communications between lawyers and their expert witnesses.
One of the Defendants moved to compel discovery from the Plaintiff to obtain documents exchanged between the Plaintiff’s lawyers and their expert.
The expert, however, was also the President of the client and the central fact witness. Plaintiff resisted production on the