Discovery and Your Expert

AuthorRobert Clifford
Chapter 2
Discovery and Your Expert
§200 Introduction
§210 Deposition of Your Expert
§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
§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 Disclosure Requirements
§210 Deposition of Your Expert
§211 Instructions to Give the Expert
§212 Videotaped Depositions
§220 Interrogatories and Requests for Admissions
§230 Protective Orders
§235 Expert Report
§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
2-81 discovEry and your ExpErt §201
§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 explain-
ing 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 unfa-
miliar 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 fre-
quently 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 expand-
ed 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 experi-
enced 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 spe-
cial damages that have been sustained. However, in
complex litigation such as anti-trust cases, insurance
coverage matters, class actions, toxic tort claims, con-
tract 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 iden-
tify 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.
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 ceas-
es the investigation based on the opinion of an expert and
the expert has not indicated a need for any further investi-
gation, the government has not acted frivolously. The inter-
pretation of the pathology report was a technical matter,
not a legal one. There was no basis for claiming that the
prosecutors were not acting in reliance on the expert. The
award for attorney’s fees is improper where the govern-
ment did not act frivolously in failing to perform an addi-
tional investigation after relying on the expert’s opinion.
§201 Qualifying and attacking ExpErt WitnEssEs 2-82
§201.1 Preservation of Evidence
In General
Spoliation refers to the destruction or mate-
rial alteration of evidence or the failure to preserve
property for another’s use of evidence in pending
or reasonably foreseeable litigation. See West v.
Goodyear Tire & Rubber Co., 167 F. 3d 776, 779 (2d
Cir. 1999).
At the onset of the retention, instruct your expert
that evidence should not be destroyed; the evidence
that forms the basis of the expert’s opinion should be
preserved. This may seem obvious but experts who are
unfamiliar with the litigation process may be unaware
of the importance of preserving the evidence after
he or she has completed the tests or experiments and
rendered an opinion. The spoliation of evidence and
the resultant lack of opportunity of the opposing side
to inspect the evidence may result in the exclusion of
your expert’s testimony. Even though the destruction
of the evidence may be completely innocent and not
in violation of any court order, in most jurisdictions
a court has the inherent power to make discovery
and evidentiary rulings conducive to the conduct of
a fair trial. If the opposing expert has been deprived
of the opportunity to inspect and report on the evi-
dence, a court may deem the fact that the expert was
foreclosed prejudicial and a deprivation of the right to
a fair trial and therefore preclude the presentation of
your expert’s opinion.
The party seeking a spoliation inference must
establish that (1) the party in control of the evidence
had an obligation to preserve it at the time the evidence
was destroyed and knew or should have known that it
was relevant to pending or foreseeable litigation; (2)
the destruction of the evidence was intentional, done
in bad faith or constituted gross negligence; (3) the
destroyed evidence was relevant to substantiating a
party’s claim or defense. A government regulation can
create the requisite obligation to retain evidence, even
if litigation involving the records is not reasonably
foreseeable. For example, regulations promulgated
by the Equal Employment Opportunity Commission
(EEOC) requiring employers to retain all records per-
taining to employment decisions for a period of two
years can create the obligation to retain records, even
though litigation involving the records is not rea-
sonably foreseeable. The aggrieved party must be a
member of the general class of persons that the regula-
tory agency sought to protect in promulgating the rule.
(See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.
3d 93, 98 (2d Cir. 2001).)
It is particularly important that both sides have
access to evidence in product liability claims when
the success or failure of the case may hinge on which
expert the trier of fact accepts. Clearly if one side has
been deprived of the chance to present expert testimo-
ny unfairness results.
Spoliation of evidence encompasses the loss,
destruction or material alteration of an object. Your
expert must be made aware of the significance of spo-
liation and avoid destruction of essential evidence.
The degree of fault varies from innocent to negligent
to intentional destruction of evidence. Courts have the
inherent power to impose sanctions against a party
responsible for the loss or alteration of evidence. The
sanctions can be severe and depend upon the degree
of prejudice to the opposing party and the degree of
culpability of the spoliator. For example, alteration or
destruction after the expert has performed tests on an
object at issue in a product liability case can result
in substantial prejudice when the opposing expert is
deprived of an opportunity to examine and test the
object. Also instruct your client not to destroy docu-
ments that may be required by the opposing expert in
order to render an opinion.
Sanctions and Penalties
A trial court has discretion to impose sanctions
under its inherent disciplinary powers. The appropriate
sanction against a litigant who destroys evidence and
is on notice or should have known that the evidence
was relevant to potential litigation depends primarily
upon the degree of fault and the degree of prejudice
to the opposing party. The severity of the sanction is
primarily a question within the discretion of the trial
court and is seldom disturbed on appeal. The trial
judge is in the best position to determine the degree of
fault of the spoliator and the prejudice caused to the
opposing party.
The destruction of relevant evidence occurs
along a continuum of fault—ranging from inno-
cence through degrees of negligence to intentional,
outrageous behavior. The resulting sanctions vary
accordingly. Sanctions range in severity from the

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