Among the advantages to using a non-retained expert in commercial litigation are three that are particularly worth mentioning: the client will not have to pay the fees and expenses of an outside expert (which can be substantial, in some cases); the in-house expert may already be conversant with the relevant facts and applicable methodologies and may not have to get “up to speed”; and the client may already feel comfortable with the in-house expert. Further, there can be a significantly less burdensome disclosure requirement for the in-house expert, which can also reduce the expenses. On the other hand, the in-house expert may not be an experienced witness. Further, counsel’s communications with the employee-expert are probably not subject to the attorney–client privilege or the work-product doctrine. Accordingly, those communications can be discovered.

Sophisticated Opinion, or Lay Opinion?

The first consideration is whether the witness’s opinion may constitute a “lay” opinion under Federal Rule of Evidence 701, or an expert opinion subject to Rules 702 and 703. Rule 701 states that lay opinions are admissible if they are rationally based on the perception of the witness and helpful to achieving a clear understanding of the witness’s testimony or a determination of a fact in issue. Courts generally agree that lay opinions require no disclosure. Read More