Trials 101: Civil and Criminal Case Management Essentials, Part 3

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1 Trials 101: Civil and Criminal Case Management Essentials, Part 3 Civil: Expert discovery Jeffrey T. Thayer, Esq. DeHay & Elliston LLP 1111 Broadway Suite 1950 Oakland, CA Phone: Fax: Direct: To Start: Expert witness discovery begins with the disclosure. Any party can compel exchange of expert witness lists and related information shortly before trial per C.C.P Remember that experts can be expensive. Discuss with client early on the amount it may cost to retain experts and cross-examine opposing experts. The Demand: A demand for exchange of expert witness information per C.C.P requires all parties to mutually and simultaneously exchange information about their experts. A demand can be made after a case is initially set for trial. The deadline is 10 days after the initial trial date has been set or 70 days before that trial date, whichever is later. If the last day falls on a weekend or holiday, the time limit is extended to the next court day closer to the trial date per C.C.P The demand must be in writing. The name of the party making the demand must appear below the title of the case. C.C.P (a). The demand must state that it is being made under Chapter 18 of the Civil Discovery Act (C.C.P et seq.). C.C.P (a).

2 The demand must state the date on which the required information is to be exchanged. That date must be 20 days after service of the demand, or 50 days before trial, whichever is later. C.C.P (b). The demand can also require the mutual and simultaneous production for inspection and copying of all discoverable reports and writings of experts employed by the parties. C.C.P (c). o Normally you want to include this in your demand, to get the opposing experts files. But remember this is a 2-way street, and you ll have to produce your experts files as well. For this reason I m always very careful about whatever communications I have with my experts. Any substantive conversations I have with my experts are always oral. I try to limit to writings to please see attached. That way when my expert is deposed and has to produce his file, he doesn t produce anything I don t want the other side to see. The demand must be served on all parties who have appeared. C.C.P Any party served with a demand can seek a protective order to limit or excuse the exchange of expert witness information demanded. C.C.P (a). o Grounds are to protect party or expert from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. C.C.P (b). o Motion must be made promptly after demand. Must be accompanied by declaration showing reasonable and good faith attempt to resolve matter informally. C.C.P , (a).

3 o Monetary sanctions imposed against losing party unless court finds substantial justification for party s position or other circumstances making sanctions unjust. C.C.P (d). The Exchange: Exchange of expert witness information can occur either at a meeting of the attorneys involved or by mailing the information on or before the date set for the exchange. C.C.P (a). Following information must be exchanged: o List of name and address of each expert that party expects to offer at trial, either live or via deposition testimony. C.C.P (b)(1). o Expert witness declaration must be attached for each expert designated who is either a party to the action, an employee of a party, or retained by a party for the purpose of forming and expressing an opinion. C.C.P (b). Must contain following information: Brief statement of expert s qualifications. Brief narrative statement of general substance of expected testimony. Represent that expert has agreed to testify at trial, and will be sufficiently familiar with the pending action to provide a meaningful oral deposition concerning the specific testimony expect is expected to give at trial. Statement of expert s hourly and daily fee for providing deposition testimony and consulting with retaining attorney. C.C.P (c). o If demand included demand for exchange of all discoverable reports and writings, all parties must exchange all discoverable reports and writings made by that expert in the course of preparing his/her opinion. C.C.P Reports in capacity of expert witness are discoverable.

4 Sometimes I ll ask an expert not to prepare a written report. Consultants advisory reports are protected as work product. But impeachment can be good cause for discovery. Right To Supplement Information Exchanged: Right to supplement expert witness exchange by adding experts to cover subjects on which opposing party indicates it plans to offer expert testimony, and on which it had not previously retained an expert to testify. C.C.P (a). o Within 20 days after original exchange, any party can serve a supplemental expert witness list, an expert witness declaration for each such expert; and discoverable reports and writings. C.C.P o Must make experts available for deposition immediately, even if 15-day deadline for deposing experts has expired. C.C.P (c). Expert Depositions Any party can depose any or all experts listed by another party. C.C.P If expert has been retained to testify, it is responsibility of party designating him/her to make him/her available for deposition on service of a proper notice and payment of the expert s fees by the deposing party. C.C.P , (a). When you depose an expert, make sure you pin down all the opinions they might offer at trial. Also find out if they have completed their work. If they intend to do further work, reserve your right to take a further deposition. Depositions of experts identified per C.C.P can be taken as late as 15 days before trial. C.C.P

5 Motions to enforce discovery relating to such depositions can be heard until 10 days before trial. C.C.P Experts designated on a supplemental expert witness list can be deposed after the 15-day cut-off. C.C.P (c). Deposition of expert retained/employed by party must be taken within 75 miles of courthouse where action is pending. C.C.P Depositions of independent experts can be taken only pursuant to deposition subpoena, meaning they have to be deposed within 75 miles of their residence. C.C.P (a). If expert has been retained to testify, no subpoena is needed, just notice and the fee. C.C.P (a). Deposing party alone is responsible for fee. C.C.P (b). Fees must be paid to any expert witness listed in exchange other than parties or employees of parties. C.C.P (a). Fee can be tendered either on service of the notice, or at commencement of the expert s deposition. C.C.P (a). Impeachment Experts: Undisclosed expert can be called to impeach opposing experts, but cannot contradict that expert s opinion. C.C.P (b). The undisclosed expert can testify to the falsity or non-existence of any fact used as the foundation for any opinion by the opposing expert. Id.

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