Excerpt from the SEAK DVD, The Expert Witness Deposition
Can something you say “off the record” be used against an expert witness at deposition?
Absolutely.
There’s no such thing as a “off the record privilege”.
“Off the record” merely means that your comments and not being recorded by the stenographer.
Counsel can, and in many cases will, ask you about the comments made “off the record” when the deposition resumes.
Let’s look at an example of how counsel, could use off the record comments against the expert witness.