by Whitney Judson - Kilpatrick Townsend and Stockton LLP
Resolution of construction disputes oftentimes involves the unravelling of complex issues, and requires the analyses and opinions of expert witnesses in various industries related to the project. For these reasons, retaining an expert consultant as soon as litigation is imminent can truly be a difference-maker in a party’s pursuit or defense of construction litigation claims.
Early retention of a non-testifying expert can be invaluable to a potential party to a construction dispute. Instead of offering testimony in any hearings connected to the dispute, an expert consultant will essentially join the party’s litigation team to assist in preparing and shaping the party’s claims and defenses. As soon as a party anticipates litigation— whether it is after receiving a letter from an attorney threatening litigation, or immediately following the rejection of a claim—a consulting expert can begin reviewing relevant documents and forming conclusions regarding causation, fault, and damages related to the dispute. As facts and issues continue to develop on the project, the consulting expert will be on hand to analyze and form opinions in real time. This is incredibly advantageous to a potential party to a construction dispute because the consultant has the unique ability and knowledge to assist attorneys very early on in formulating pointed written discovery requests and deposition questions and topics that will most effectively support the party’s claims and de fenses.
If the construction dispute advances to mediation, a party with a consulting expert already on hand is again at an advantage because the consultant can assist the legal team in presenting strong evidence at mediation that most accurately quantifies and assesses damages, and that most effectively attacks the claims of the opposing party. This added layer of expertise, accuracy, and credibility at such an early stage in the dispute may very well motivate the opposing party to actively pursue settlement, which saves all parties involved time and expense. If the construction dispute moves into the litigation process, a non-testifying expert consultant can assist the legal team in selecting an expert witness who will testify at hearings on behalf on the party. The consultant, as an expert in the field and as someone who has been analyzing the issues and disputes on the project since the moment litigation was anticipated, is well-positioned to assist the attorneys in reviewing the work and vetting the credentials of potential testifying expert witnesses. Once an expert witness is chosen, the legal team may have the consultant use his or her expertise and longterm knowledge of the project to inspect the expert witness’s analyses, conclusions, and opinions for accuracy and reliability.
Many jurisdictions across the U.S. offer a qualified privilege for the thoughts and opinions of non-testifying expert consultants retained specifically in anticipation of litigation, unless the party seeking discovery can demonstrate “extraordinary circumstances” that make it impractical for the seeking party to discover facts or opinions on the same subject by other means. If all requirements of the qualified privilege are met, a potential party to a possible construction dispute will likely not be required to produce the studies, analyses, opinions, or even the identity of its non-testifying expert consultant. Preserving this qualified privilege is highly important because the consultant’s findings and opinions may possibly prove to be unfavorable to the legal positions taken by the party that hired the consultant. If the privilege does not apply, a party may be required to produce all of the consultant’s opinions and analyses to the opposing party—even those that may possibly prejudice the hiring party’s claims.
To best utilize the leverage and advantages that a non-testifying consultant can offer, a party should retain legal counsel who is keenly aware of the role timing plays in expert retention. While it is certainly advantageous to hire a non-testifying expert at the earliest moment possible in the construction litigation process, the expert’s opinions likely will not be privileged if the expert’s retention precedes the date of anticipated litigation. Jurisdictions across the country may differ on which facts and circumstances trigger a dispute’s “anticipation of litigation” date, so it is important to consult legal counsel on the specifics of your jurisdiction before hiring a consultant. Generally however, the anticipated litigation date is the date where the parties to the dispute become aware that litigation may be imminent. It is not necessary that a lawsuit be filed for parties to reasonably anticipate litigation. However, anticipation of litigation can occur when an actual or a potential claim on the project presents itself, so that the hiring of a consultant may be fairly regarded as the party’s anticipation of, and preparation for, possible litigation. Speaking with legal counsel experienced in construction litigation matters, including the hiring of expert witnesses and consultants, is helpful to any party who wishes to successfully prove claims or assert defenses in a construction dispute.
 See Higher One, Inc. v. TouchNet Information Systems, Inc., 298 F.R.D. 82, 87 (W.D.N.Y. 2014); Sandy Point Farms, Inc. v. Sandy Point Village, LLC, 200 A.3d 659, 663 (2019); In re Detention of West, 171 Wash. 2d 383, 404 (2011); Ex parte Mobile Gas Service Corp., 123 So. 3d 499, 515 (2013); Juedeman v. Montana Deaconess Medical Center, 223 Mont. 311 (1986).
 Liverperson, Inc. v. 24/7 Customer, Inc., No. 14 Civ 1559 (S.D.N.Y. July 29, 2015) (protecting a nontestifying expert’s identity from discovery unless ex ceptional circumstances are shown).
 In re Asbestos Products Liability Litigation (No. VI), 256 F.R.D. 151, 156 (E.D. Penn. February 25, 2009) (“Where there is no evidence of the scope and nature of the expert’s services as pertaining to the litigation or work done unrelated to litigation, an individual will likely not be considered a non-testifying litigation consultant and the consulting expert privi lege will not attach”).
 Id (“The party resisting discovery…has the burden of demonstrating that the expert was retained in anticipation of litigation”).