Attorneys – Expert witness – Waiver of privilege

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Where the plaintiffs in an accounting malpractice action have disclosed their former counsel as an expert witness, they have waived the attorney-client privilege and work product protection related to (1) the attorney’s expert opinions, (2) prior statements he made related to or inconsistent with those expert opinions and (3) the work he performed, documents he reviewed or communications he had related to, or in order to form, his opinions.

“In this thoroughly litigated accounting malpractice action, defendant Deloitte Tax LLP (‘Deloitte’) moves to compel plaintiffs William and Joyce Cummings and third-party defendant W.S. Cummings Realty (the ‘Company,’ and together with plaintiffs, ‘the Cummings Parties’) (i) to produce 3,074 documents withheld on the grounds of attorney-client privilege or work product relating to their communications with and work by Wilmer Hale attorneys (‘the Wilmer Documents’); and (ii) to allow Deloitte to depose the Cummings Parties’ former Wilmer Hale attorney, Roger Ritt (‘Ritt’), who plaintiffs have disclosed as an expert witness, including about his communications with the Cummings Parties in connection the IRS examination of the Company’s 2016 tax return (‘the Exam’) and the bases for his expert opinions to be offered at trial. For the following reasons, the motion to compel is allowed in part. …

“Ritt was initially hired to defend the Cummings Parties before the IRS, including arguing generally that the position the Cummings Parties took in connection with the Company’s 2016 tax return was reasonable. …

“Despite his previous advocacy for plaintiffs with the IRS, plaintiffs now intend to call Ritt to opine in an arguably inconsistent manner. …

“As to the production of documents, the Cummings Parties have listed 3,074 documents — the Wilmer Documents — that they have not produced on the grounds that they are either covered by the work product doctrine or subject to the attorney-client privilege. …

“Deloitte now moves (i) to compel the production of the Wilmer Documents; and (ii) to require Ritt to answer questions during his deposition regarding his communications about his work and opinions in connection with the Exam. …

“Just as the attorney-client privilege and work product doctrine may be waived when a party puts the advice rendered by an attorney at issue, … the attorney-client privilege and work product protection may also be waived when a party chooses to call its attorney as an expert, particularly where it appears the expert has provided somewhat inconsistent opinions. …

“The Cummings Parties need not call Ritt as an expert in this case. Where, as here, they have chosen to do so, they have waived the attorney-client privilege or work product protection related to (i) Ritt’s expert opinions, (ii) prior statements Ritt made related to or inconsistent with those expert opinions, and (iii) the work Ritt performed, documents he reviewed, or communications he had related to, or in order to form, his opinions (‘the Scope of the Waiver’). …

“With respect to the particular items Deloitte seeks to compel, I cannot issue an order across the board. For example, I cannot say that each of the Wilmer Documents, which have been identified only as ‘Legal communication and work by WilmerHale re IRS Audit,’ necessarily falls within the Scope of the Waiver. As to the Wilmer Documents that fall within the Scope of the Waiver, any privilege or protection has been waived by the announced decision to call Ritt to testify as an expert. The Cummings Parties shall produce all such documents within 21 days.

“To the extent the Cummings Parties contend that any of the Wilmer Documents are outside the Scope of the Waiver, they shall submit a revised privilege log within 21 days, more particularly describing the nature of each such document so that Deloitte, and ultimately the court, if necessary, is able to assess from that particularized description whether that document is or is not within the Scope of the Waiver. Consistent with existing law, the Cummings Parties will bear the burden to demonstrate that each such document falls outside the Scope of the Waiver. …

“In connection with Ritt’s deposition, Ritt shall answer all questions within the Scope of the Waiver. Neither Ritt, nor the Cummings Parties, may invoke the attorney-client privilege or work product doctrine to shield any information from discovery if it is within the Scope of the Waiver.”

Cummings, et al. v. Deloitte Tax LLP (Lawyers Weekly No. 09-008-26) (6 pages) (Krupp, J.) (Suffolk Superior Court) (Civil No. 23-103-BLS1) (Jan. 16, 2026).

Click here to read the full text of the opinion.