Discovery and Your Expert
| Author | David J. Galluzzo |
| Pages | 87-174 |
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
§214.1 Know Your Expert
QAEW 2-2
DISCOVERY AND
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 Attorney-Client Privilege
§242 Expert’s Notes and Communications with Non-Attorneys
§243 Discovery of Non-Testifying Expert
Sample: Motion to Quash Subpoena Duces Tecum
Sample: Order Quashing Subpoena Duces Tecum
§244 Discovery of Non-Testifying Expert’s Identity
§245 Admission of Documentary Evidence
Sample: Stipulation Regarding Admission of Documents
§246 Discovery of Electronic Documents
§246.1 Admission of Electronically Stored Information
§247 Discovery on the Internet
2-3 DYE §201
INTRODUCTION
§200 INTRODUCTION
Once you have selected an expert, arrange a meeting to define the expert’s role and the division of labor
between you and the expert, explain the nature of the case and determine what is expected of each party and what
the limitations are of the expert.
Your expert should educate you concerning technicalities and idiosyncrasies of his or her area of expertise.
Make sure he or she is forthright in explaining any limitations he may have in testifying to the desired ultimate
opinion. Any doubts he may have about your theory or the manner in which the opinion is to be presented must
be expressed at this stage of the case. It is essential that you are aware of his reluctance now rather than after the
case has progressed—when you might be committed to a theory.
It is equally important that the expert is aware of the peculiarities of the legal profession and how his
testimony relates to your overall litigation plan. If your witness is inexperienced as an expert and unfamiliar with
the process of litigation, the time you spend with him at an early stage of the case will prove especially beneficial.
Acquaint the expert with the vocabulary of the law as it bears upon his 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 he fits into the litigation process.
§201 THE EXPERT’S ROLE IN LITIGATION
The expert should be made aware of the nature of the case in detail so that he is fully aware of his role in
the overall litigation plan. Explain the theories of liability and defense to him, and give him pertinent pleadings
and documents. Just as you might be unfamiliar with his field and will have to seek information from him during
the course of the trial preparation, encourage him to ask questions concerning the legal process throughout the
litigation.
Consider using the expert’s conclusions early in the litigation. Statistics vary, but over 90 percent of cases
filed are settled without trial. Settlement frequently occurs within a month of trial after substantial sums have
been expended in preparing and responding to discovery and pretrial motions. If settlement can be accomplished
early in the proceedings, the same result often is reached at a fraction of the cost. To facilitate an early settlement,
consider providing the opposing party with your expert’s conclusions and the basis for those conclusions early in
the litigation. With expanded and liberalized discovery, your expert’s opinion will be known to the opposing party
before trial anyway.
An expert can assist in the evaluation of a case in 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, and jury verdict services can provide information as to the range of verdicts for the type of
injury and the special damages that have been sustained. However, 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 may be essential. Experienced experts
can provide estimates of the various scenarios and the range of the amount of potential verdicts and can identify the
advantages or difficulties in the case. Before a client can take an intelligent position as to settlement, he or she should
have the benefit of an expert as to an evaluation of the claim and the potential results.
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 government 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
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