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Massachusetts court holds designating former attorney as expert witness waives attorney client privilege

3/5/26

By: Jessica Gray Kelly, Nancy Reimer and Julia Ruch

The Massachusetts Superior Court recently issued a notable discovery ruling that serves as an important reminder for litigants who consider naming a former attorney as an expert witness. In Cummings v. Deloitte, the court held that the plaintiffs’ decision to designate their former tax attorney as an expert witness waived the attorney‑client privilege and work‑product protection related to his expert opinions, prior statements he made related to or inconsistent with his expert opinions and all of the work he “performed, documents he reviewed, or communications he had related to, or in order to form, his opinion.” The court noted that the waiver was particularly clear where prior counsel’s proposed expert opinion was arguably inconsistent with the positions he took on behalf of plaintiffs before the IRS.

As such, the court ordered Plaintiffs to produce all documents within the scope of the waiver or to provide a more detailed privilege log for documents Plaintiffs believed fell outside the scope of the waiver.  Additionally, the court ordered prior counsel to  answer all deposition questions within the waiver’s scope, and neither he nor the plaintiffs may invoke privilege to withhold that information.

Designating a former attorney as an expert witness can significantly, and sometimes unexpectedly, expand the scope of discovery. When an attorney’s prior legal work intersects with their expert testimony, courts may find privilege waived as to that subject matter. Parties should weigh the strategic benefits of using such an expert against the potential exposure of privileged communications, work product, and internal legal analysis.

If you have any questions regarding this blog please contact Jessica Gray Kelly, Nancy Reimer, Julia Ruch or your local FMG attorney.

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