by David J. Farrell, Jr.
Here’s a Miranda Warning for marine surveyors: Anything you write can and will be used against you in a court of law. You already knew that; so what else is new? Actually not much, but it’s nonetheless worth reviewing some of Miranda’s corollaries.
I wrote that 15 years ago in Exchange and it still holds true today. But in 2010 there was a federal law amendment, which surveyors should know about. In federal court cases, Federal Civil Procedure Rule 26(b)(4) now protects from discovery an expert’s draft reports preliminary to the final version when prepared in conjunction with an attorney. The reason for this change is “to protect counsel’s work product and ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery” by opposing counsel. So, for example, it is now safe for a defense attorney to share “work product” with the insured’s expert in building the case without fear that legal strategies will be discovered via the expert’s file.
