Discovery III

1
Discovery III

• Expert Witness Disclosure
• And Discovery Motions Sanctions

2
Expert Witnesses

• What is an Expert Witness?
• Specialized knowledge, education or training
• In particular subject area
• Who is called to render an opinion
• To assist the trier of fact (judge or jury)
• Opinion testimony draws conclusions from the
  facts
• Opinion testimony of non-experts is not generally
  admissible

3
Expert Witnesses

• Types of expert witnesses
• Physicians
• Forensic accountants
• Handwriting experts
• Appraisers of value
• Accident reconstruction experts
• Attorneys in legal malpractice case
• DNA
• Engineers

4
Expert Witnesses Engaging the Expert

• Finding an expert
• Prior testimony
• Reputation
• Expert Witness Providers
• Internet search
• Consulting vs. Testifying Expert
• Consulting work covered by work product
  privilege
• Testifying no privilege

5
Expert Witnesses Engaging the Expert

• Define scope of engagement
• Written fee agreement
• Fees and payment
• Advise witness of opponents discovery rights
• Documents in file
• Preliminary opinions and thoughts
• Discussions with attorney, paralegal and client

6
Expert Witnesses Disclosure

• Code of Civil Procedure section 2034
• Any party may serve a demand for the simultaneous
  disclosure of expert witness lists
• Timing
• Deadline is 10 days after case is initially set
  for trial or 70 days before trial, whichever is
  later
• Cannot serve demand or discover experts prior to
  the time the case is set for trial

7
Expert Witnesses Disclosure

• Form of Demand for Exchange of Experts1
• Date for exchange 20 days after the demand or
  50 days prior to trial whichever is later (plus
  time for method of service)
• May also include a demand to produce reports of
  the expert
• Federal Court procedure FRCP Rule 26
• No demand required or permitted
• Date for disclosure of experts is set in pretrial
  scheduling order

8
Expert Witnesses Disclosure

• Simultaneous Exchange
• All parties must serve reply on or before
  exchange date
• Information to be exchanged (2 parts)
• Expert list
• Expert witness declaration for each witness
  disclosed

9
Expert Witnesses Disclosure

• Expert Witness List 2
• Name and address of each disclosed expert
• Expert Witness Declaration by Attorney
• For each expert disclosed
• Statement of experts qualifications
• General substance of experts expected testimony
• Representation that expert is ready to testify
  and to give a meaningful deposition
• Statement of the experts fees for deposition
  testimony
• 3

10
Expert Witnesses Disclosure

• Supplemental Designation
• Any party may designate additional experts to
  rebut another partys designated expert with 20
  days after the initial exchange
• Only to rebut
• Pl. designates a physician and accident
  reconstruction expert. Def. designates only a
  physician.
• Def. could make a supplemental designation of an
  accident reconstruction expert to rebut pl.s
  expert

11
Expert Witness - Depositions

• All parties have the right to notice the other
  partys expert witnesses deposition after the
  designation
• If you notice the other partys experts
  deposition, you must pay experts fees at or
  prior to the deposition
• Discovery cut-off for expert discovery is 15 days
  prior to trial (30 days for all other discovery)

12
Expert Witnesses

• NOTE Penalty for failure to designate an expert
  is that you cannot call the expert as a witness
  at trial
• This could be fatal to your case
• If you need expert testimony to prove an element
  of your case, i.e..
• Breach of duty standard of care
• Forgery
• Value of real or personal property
• Causation
• Damages

13
Discovery Motions and Sanctions

• Motions to Compel Discovery
• Prepared like any other motion
• Must have a Separate Statement C.R.C. 335
• unless there is no response at all
• Meet and Confer requirement
• Motions made or opposed without substantial
  justification my result in sanctions or
  penalties against the attorney

14
Discovery Motions and Sanctions

• Motions for Protective Orders
• An order restricting or limiting the discovery by
  one party to another
• Abusive discovery tactics
• Meet and Confer rules apply
• Examples
• Preventing disclosure of privileged information
• Abusive discovery practices
• Regulating conduct of discovery

15
Discovery Motions and Sanctions

• Sanctions penalties imposed by the Court for
  abusing the discovery process
• May be imposed on attorney and/or client
• Types
• Monetary sanctions
• Issue or evidence preclusion sanctions
• Terminating sanctions
• Contempt of Court

16
Spoliation of Evidence

• Defined The unjustified, intentional or
  negligent destruction, concealment, alteration or
  failure to preserve evidence which is reasonably
  known at the time it is destroyed or tampered
  with to be relevant to the issues of either
  pending or reasonably probable litigation.
• May result in sanctions or independent tort
  recovery
• Litigation Hold Letters to preserve evidence,
  particularly e-discovery

17
Discovery Limited Civil Cases

• As to each adverse party limited to
• 35 of any of the following
• Interrogatories
• Demands for Production of Documents and Things
• Requests for Admissions
• PLUS
• One oral deposition
• PLUS
• Mental and Physical Exams, Expert Witness
  Disclosure and Business Records Subpoenas