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 expert’s qualifications • General substance of expert’s expected testimony • Representation that expert is ready to testify and to give a meaningful deposition • Statement of the expert’s fees for deposition testimony 3

10. Expert Witnesses – Disclosure • Supplemental Designation • Any party may designate additional experts to rebut another party’s 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 party’s expert witnesses deposition after the designation • If you notice the other party’s expert’s deposition, you must pay expert’s 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