Discovery and Your Expert

• Author: David J. Galluzzo
• Pages: 93-190

2-1

DISCOVERY AND

YOUR EXPERT

CHAPTER 2

DISCOVERY AND YOUR EXPERT

§200 Introduction

§210 Your Expert’s Deposition

§220 Interrogatories and Requests for Admission

§230 Protective Orders

§235 Expert Report

§240 Your Expert’s Documents

§200 Introduction

§201 The Expert’s Role in Litigation

§201.1 Preservation of Evidence

§201.2 Spoliation in Product Liability Cases

§201.3 Experts in Document Discovery

§202 The Discovery Process

§202.1 Deposition Preparation Checklist

§202.2 Interrogatory Preparation Checklist

§202.3 Document Production Preparation Checklist

§202.4 Rules of Evidence Checklist

§202.5 Voir Dire

§202.6 Cross-Examination

§203 Expert Disclosures

§203.1 Timing of Expert Disclosures

§203.1.1 Initial Disclosures and Damages Experts

§203.1.2 Compliance with Fed. R. Civ. P. 26(a)(2) and Local Rules

§203.2 Disclosure Requirements for Non-Testifying Experts

§203.3 Disclosure Requirements for Rule 26(a)(2)(B) Experts

§203.3.1 Specific Requirements for Expert Report

§203.3.2 Attorney Assistance with Report Preparation

§203.3.3 Continuing Duty to Supplement

§203.4 Disclosures Requirements for Rule 26(a)(2)(C) Experts

§203.5 Automatic Sanctions for Deficient Expert Disclosures: Rule 37(c)(1)

Sample Motion in Limine to Preclude Expert Evidence for Failure to Comply

with Disclosure Requirements

§203.6 What Is Protected from Disclosure: Rule 26(a)(2)(B) vs. Rule 26(a)(2)(C)

§203.7 Expert Disclosure in State and Criminal Courts; Different Rules, Same Goals

§203.7.1 Expert Disclosure in State Civil Courts

§203.7.2 Expert Disclosure in Federal Criminal Courts

§210 Your Expert’s Deposition

§211 Why Preparation Is Crucial to the Success of Your Case

§211.1 Your Ethical Obligations

§211.2 The Pitfalls of an Under-Prepared Expert Witness

§211.3 The Pitfalls of an Over-Prepared Expert Witness

§212 Expert’s Impact on Factual Testimony: the Thin Line between “Wordsmithing” and

Alteration

§213 Privilege Issues—What Is and Is Not Discoverable

§214 Preparing Yourself to Prepare Your Expert: a Step-by-Step Guide

QUALIFYING AND ATTACKING EXPERT WITNESSES 2-2

DISCOVERY AND

YOUR EXPERT

§214.1 Know Your Expert

§214.2 Prepare to Lead

§214.3 Read the Expert’s Publications

§214.4 Identify Key Documents

§214.5 Prepare Your Document Sets

§214.6 Organize Your Presentation

§214.7 Schedule Time with Your Expert

§215 Preparing Your Expert for Deposition: A Step-by-Step Guide

§215.1 Basic Rules, General Instructions, and Specific Cautions

§215.2 A Multi-Level Strategy for Building Your Expert’s Confidence and Competence

§215.3 Challenge Your Expert by Going Live

§216 Defending the Deposition; Deposition Objections

§217 Post-Deposition Review

§220 Interrogatories and Requests for Admissions

§230 Protective Orders

§235 Drafting Written Reports – Fed. R. Civ. P. 26(a)(2)(B) Experts

§235.1 How Attorney Can Assist Expert in Making Report Persuasive and Comprehensible

by Laypersons

§240 Your Expert’s Documents

§241 Documents of Testifying Experts and Interpretation of Rule 26

§242 Expert’s Notes and Communications with Non-Attorneys

§243 Documents of Non-Testifying Expert

Sample: Motion to Quash Subpoena Duces Tecum

Sample: Order Quashing Subpoena Duces Tecum

§244 Identity of Non-Testifying Expert

§245 Admission of Documentary Evidence

Sample: Stipulation Regarding Admission of Documents

§246 Retention and Discovery of Electronic Documents

§246.1 Avoiding Spoiliation Sanctions

§246.2 Litigation Holds

Sample: Litigation Hold Letter

§246.3 Scope of Discovery, Proportionality, and Privacy

§246.4 Document Retention Policy

§246.5 Rules Governing Discovery of Electronic Documents

§246.6 Summary of Electronic Discovery Rules, Advisory Committee Notes, and

Case Law

§247 Admission of Electronically Stored Information

2-3 DISCOVERY AND YOUR EXPERT §201

DISCOVERY

AND YOUR EXPERT

§200 INTRODUCTION

Experts are central to litigation and litigation strategies. An expert should fully understand the nature of the

case in detail and be fully aware of his or her role in the overall litigation strategy. Just as you may be unfamiliar

with the expert’s field, the expert may be unfamiliar with the legal process. Encourage the expert to ask questions

throughout the litigation so he or she becomes an integral part of your team.

Once you have selected an expert, arrange a meeting to define your expert’s role in the case and the division

of labor between you and the expert. Explain the theories of liability and defense and provide the pleadings and

other pertinent documents. Explain what is expected of each party and their experts.

If your expert is unfamiliar with the litigation process, the time you spend together at an early stage of the

case will benefit you both. Acquaint the expert with the vocabulary of the law as it bears upon his or her testimony,

the constraints that are imposed upon expert testimony, the time limitations, the nature of the discovery process,

trial procedures (if the expert is expected to testify at trial) and how the expert fits into discovery and the overall

litigation process.

§201 THE EXPERT’S ROLE IN LITIGATION

Early retention of experts is beneficial. Statistics indicate that over 90 percent of lawsuits are settled well

before trial. Unfortunately, many settlements occur within months of trial after substantial sums have been

expended in preparing and responding to discovery and pretrial motions. It is best to retain experts early in the

case, well before expert discovery.

If settlement can be accomplished early, the same result may be reached at a fraction of the cost. To facilitate

quick settlement, consider providing the opposing party with your expert’s conclusions and the basis for them

early in the litigation. Given the liberalized discovery standards in modern practice, your expert’s opinion will be

known well before trial, usually by the close of expert discovery; you have very little to lose in presenting your

strongest case before discovery to force an early settlement.

Consider retaining an expert to evaluate your case. An expert can assist in the evaluation of a case, even

before filing, which may lead to better preparation for settlement negotiations. In straightforward personal injury

litigation, an experienced attorney may be able to advise the client as to the chance of prevailing on the issue

of liability. Jury verdict services can also provide information as to the range of verdicts for the type of injury

including special or enhanced damages. Seeking early expert opinion can also help shield attorneys and their

clients from legal fees and costs in the event they lose at trial.

In complex litigation such as anti-trust cases, insurance coverage matters, class actions, toxic tort claims,

contract disputes, and multi-party litigation in which the apportionment of damages and the degree of fault are

at issue, experts are essential. Experienced experts can opine on various scenarios, highlight the strengths and

weaknesses of the case, and provide estimates concerning potential verdicts. Before a client considers settlement

offers, he or she should consult one or more experts to evaluate of their claims and potential outcomes if brought

to trial.

CASE

United States v. Capener, 608 F.3d 392 (9th Cir. 2010) was a failed prosecution of a physician accused of health care

fraud involving billing for surgeries that were allegedly unnecessary, never performed, or exaggerated for billing

purposes. The defendant physician sought an award of fees pursuant to 18 USC §3006A which allows an award of

fees to a defendant when the prosecution acted in a manner that was vexatious, frivolous, or in bad faith. The gov-

ernment argued that it relied on an expert physician who reviewed the defendant’s patient files, pathology reports,

and CT scans, and concluded that many of the surgeries that the defendant billed for were either unnecessary or were

not performed. The court held that where the government ceases the investigation based on the opinion of an expert

and the expert has not indicated a need for any further investigation, the government has not acted frivolously. The