discovery iii expert witness disclosure and discovery motions & sanctions

Discovery IIIDiscovery III

Expert Witness DisclosureExpert Witness DisclosureAnd Discovery Motions & And Discovery Motions &

SanctionsSanctions

Expert WitnessesExpert Witnesses

What is an Expert Witness?What is an Expert Witness?– Specialized knowledge, education or Specialized knowledge, education or

trainingtraining– In particular subject areaIn particular subject area– Who is called to render an opinion Who is called to render an opinion – To assist the trier of fact (judge or jury)To assist the trier of fact (judge or jury)

Opinion testimony draws conclusions Opinion testimony draws conclusions from the factsfrom the factsOpinion testimony of non-experts is Opinion testimony of non-experts is not generally admissiblenot generally admissible


Types of expert witnessesTypes of expert witnesses– PhysiciansPhysicians– Forensic accountantsForensic accountants– Handwriting expertsHandwriting experts– Appraisers of valueAppraisers of value– Accident reconstruction expertsAccident reconstruction experts– Attorneys in legal malpractice caseAttorneys in legal malpractice case– DNADNA– EngineersEngineers

Expert Witnesses – Engaging Expert Witnesses – Engaging the Expertthe Expert

Finding an expertFinding an expert– Prior testimonyPrior testimony– ReputationReputation– Expert Witness ProvidersExpert Witness Providers– Internet searchInternet search

Consulting vs. Testifying ExpertConsulting vs. Testifying Expert– Consulting – work covered by work product Consulting – work covered by work product

privilegeprivilege– Testifying – no privilegeTestifying – no privilege

Expert Witnesses – Engaging Expert Witnesses – Engaging the Expertthe Expert

Define scope of engagementDefine scope of engagement– Written fee agreementWritten fee agreement– Fees and paymentFees and payment

Advise witness of opponents Advise witness of opponents discovery rightsdiscovery rights– Documents in fileDocuments in file– Preliminary opinions and thoughtsPreliminary opinions and thoughts– Discussions with attorney, paralegal and Discussions with attorney, paralegal and

clientclient

Expert Witnesses – Expert Witnesses – Disclosure Disclosure

Code of Civil Procedure section 2034 Code of Civil Procedure section 2034

Any party may serve a demand for the Any party may serve a demand for the simultaneous disclosure of expert simultaneous disclosure of expert witness listswitness lists

Timing – Timing – – Deadline is 10 days after case is Deadline is 10 days after case is initiallyinitially set set

for trial or 70 days before trial, whichever is for trial or 70 days before trial, whichever is laterlater

– Cannot serve demand or discover experts Cannot serve demand or discover experts prior to the time the case is set for trialprior to the time the case is set for trial

Expert Witnesses – Expert Witnesses – DisclosureDisclosure

Form of Demand for Exchange of Form of Demand for Exchange of ExpertsExperts11– Date for exchange – 20 days after the Date for exchange – 20 days after the

demand or 50 days prior to trial whichever demand or 50 days prior to trial whichever is later (plus time for method of service)is later (plus time for method of service)

– May also include a demand to produce May also include a demand to produce reports of the expertreports of the expert

Federal Court procedure – FRCP Rule 26Federal Court procedure – FRCP Rule 26– No demand required or permittedNo demand required or permitted– Date for disclosure of experts is set in Date for disclosure of experts is set in

pretrial scheduling orderpretrial scheduling order


Simultaneous ExchangeSimultaneous Exchange– All parties must serve reply on or before All parties must serve reply on or before

exchange dateexchange date– Information to be exchanged (2 parts)Information to be exchanged (2 parts)

Expert listExpert list

Expert witness declaration for each witness Expert witness declaration for each witness discloseddisclosed


Expert Witness List Expert Witness List 22– Name and address of each disclosed expertName and address of each disclosed expert

Expert Witness Declaration by Attorney – Expert Witness Declaration by Attorney – For each expert disclosed:For each expert disclosed:– Statement of expert’s qualificationsStatement of expert’s qualifications– General substance of expert’s expected testimonyGeneral substance of expert’s expected testimony– Representation that expert is ready to testify and Representation that expert is ready to testify and

to give a meaningful depositionto give a meaningful deposition– Statement of the expert’s fees for deposition Statement of the expert’s fees for deposition

testimonytestimony

33


Supplemental DesignationSupplemental Designation– Any party may designate additional experts Any party may designate additional experts

to to rebut another party’s designated expertrebut another party’s designated expert with 20 days after the initial exchangewith 20 days after the initial exchange

– Only to rebutOnly to rebutPl. designates a physician and accident Pl. designates a physician and accident reconstruction expert. Def. designates only a reconstruction expert. Def. designates only a physician.physician.

Def. could make a supplemental designation of Def. could make a supplemental designation of an accident reconstruction expert to rebut pl.’s an accident reconstruction expert to rebut pl.’s expertexpert

Expert Witness - Expert Witness - DepositionsDepositions

All parties have the right to notice All parties have the right to notice the other party’s expert witnesses the other party’s expert witnesses deposition after the designationdeposition after the designationIf you notice the other party’s If you notice the other party’s expert’s deposition, you must pay expert’s deposition, you must pay expert’s fees at or prior to the expert’s fees at or prior to the depositiondepositionDiscovery cut-off for expert discovery Discovery cut-off for expert discovery is 15 days prior to trial (30 days for is 15 days prior to trial (30 days for all other discovery)all other discovery)


NOTE: Penalty for failure to designate an NOTE: Penalty for failure to designate an expert is that you cannot call the expert as expert is that you cannot call the expert as a witness at triala witness at trial

This could be fatal to your caseThis could be fatal to your case– If you need expert testimony to prove an If you need expert testimony to prove an

element of your case, i.e..element of your case, i.e..Breach of duty – standard of careBreach of duty – standard of care

ForgeryForgery

Value of real or personal propertyValue of real or personal property

CausationCausation

DamagesDamages

Discovery Motions and Discovery Motions and SanctionsSanctions

Motions to Compel DiscoveryMotions to Compel Discovery– Prepared like any other motionPrepared like any other motion– Must have a “Separate Statement” C.R.C. Must have a “Separate Statement” C.R.C.

335335

unless there is no response at allunless there is no response at all

““Meet and Confer” requirementMeet and Confer” requirement

Motions made or opposed “without Motions made or opposed “without substantial justification” my result in substantial justification” my result in sanctions or penalties against the sanctions or penalties against the attorneyattorney


Motions for Protective OrdersMotions for Protective Orders– An order restricting or limiting the An order restricting or limiting the

discovery by one party to anotherdiscovery by one party to another– Abusive discovery tacticsAbusive discovery tactics– ““Meet and Confer” rules applyMeet and Confer” rules apply– Examples:Examples:

Preventing disclosure of privileged Preventing disclosure of privileged informationinformation

Abusive discovery practicesAbusive discovery practices

Regulating conduct of discovery Regulating conduct of discovery


Sanctions – penalties imposed by the Sanctions – penalties imposed by the Court for abusing the discovery processCourt for abusing the discovery process– May be imposed on attorney and/or clientMay be imposed on attorney and/or client

TypesTypes– Monetary sanctions Monetary sanctions – Issue or evidence preclusion sanctionsIssue or evidence preclusion sanctions– Terminating sanctionsTerminating sanctions– Contempt of CourtContempt of Court

Spoliation of EvidenceSpoliation of Evidence

Defined: The unjustified, intentional or Defined: The unjustified, intentional or negligent destruction, concealment, negligent destruction, concealment, alteration or failure to preserve evidence alteration or failure to preserve evidence which is reasonably known at the time it is which is reasonably known at the time it is destroyed or tampered with to be relevant to destroyed or tampered with to be relevant to the issues of either pending or reasonably the issues of either pending or reasonably probable litigation.probable litigation.

May result in sanctions or independent tort May result in sanctions or independent tort recoveryrecovery

Litigation Hold Letters – to preserve evidence, Litigation Hold Letters – to preserve evidence, particularly e-discoveryparticularly e-discovery

Discovery – Limited Civil Discovery – Limited Civil CasesCases

As to each adverse party limited to:As to each adverse party limited to:– 35 of any of the following:35 of any of the following:

InterrogatoriesInterrogatories

Demands for Production of Documents and Demands for Production of Documents and ThingsThings

Requests for AdmissionsRequests for Admissions

PLUSPLUS

One oral depositionOne oral deposition

PLUSPLUS

Mental and Physical Exams, Expert Witness Mental and Physical Exams, Expert Witness Disclosure and Business Records SubpoenasDisclosure and Business Records Subpoenas