Discovery III Expert Witness Disclosure And Discovery Motions & Sanctions.
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Transcript of 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
Expert WitnessesExpert Witnesses
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
Expert Witnesses – Expert Witnesses – DisclosureDisclosure
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 Witnesses – Expert Witnesses – DisclosureDisclosure
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
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Expert Witnesses – Expert Witnesses – DisclosureDisclosure
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)
Expert WitnessesExpert Witnesses
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
Discovery Motions and Discovery Motions and SanctionsSanctions
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
Discovery Motions and Discovery Motions and SanctionsSanctions
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