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Expert Witness Issues in the Delaware Bankruptcy Court: The Teleglobe Decision Proceedings

The road taken by an attorney in working with an expert witness is one that inevitably leads to the same forks: which, if any, aspects of the attorney’s own evaluation of the case should be shared with the expert? How much input should counsel have in editing the expert’s report? And, the report having been revised, must the expert retain all prior drafts? These and related issues arise whenever an expert is used in any federal court litigation, and litigation in bankruptcy cases is, of course, no different because the same Federal Rules of Civil Procedure and Federal Rules of Evidence govern. But, that said, courts have divided on how the rules apply to these types of questions concerning expert witnesses. In a relatively recent decision, Teleglobe U.S.A., Inc. v. BCE, Inc. (In re Teleglobe Communications Corp.), 392 B.R. 561 (Bankr. Del. Aug. 7, 2008), Bankruptcy Judge Mary F. Walrath of the Delaware bankruptcy court provided some answers that will assist attorneys litigating in the Delaware bankruptcy courts in navigating the forks in the expert witness road.

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