Discovery and the Expert's Role

The most critical component relating to an expert’s role in a case is discovery. The information obtained during this process will determine the veracity and strength of your opinions.  An inadequate and untimely discovery process can severely hamper an expert.
You can assist the attorney by specifying documents that may be valuable in the formation of your opinions.  Another important role that is often overlooked is in the formulation of questions for both fact witnesses and opposing expert witnesses in preparation for depositions.

Types of Discovery

The discovery process is the production of materials such as responses to document production requests, responses to interrogatories , depositions of fact and expert witnesses, and expert disclosures. These materials may be produced in hard copy or on CDs or in electronic databases and it is your responsibility as an expert to review and organize relevant materials in support of your opinions. Discovery documents are assigned an alphanumeric code called a Bates number that is stamped on the document in order for each side to quickly identify specific documents.

The Challenge of Document Requests

Work with the attorney who retained you early in the discovery process to increase the likelihood that information pertinent to your area of expertise is requested from the opposing side. Your role is to identify both the types of the documents (e.g. financial reports; shipping orders; warning labels) and the information (e.g. expenditures for new construction; cost per ton of materials; chemical data) you would need to support your opinions. It can be challenging to tailor requests for documents when you are new to expert witnessing. Seasoned experts know that if a request is too general in nature, the opposing side can either overwhelm you with large volumes of extraneous information or determine the request is too broad to respond to. On the flip side, if a request is too narrow, the opposing side may turn over only a minimal amount of information, usually requiring another round of document requests.

Since requests for document production typically have 30 days to be responded to by the opposing side, additional rounds of discovery requests can delay getting what you need. If you are retained late in a case and discovery has been ongoing, you may need to ask the attorney to file additional document requests to obtain the information you consider valuable. Don’t be shy about informing the attorney that the documents you need for your opinions have not been requested and/or provided.

Discovery and Your Work Product

As a testifying expert you need to be aware that any work product you generate in connection with your research and expert report generally is discoverable by the opposing side and will become part of the document production. This is called expert discovery and is governed by Rule 26 of the Federal Rules of Civil Procedures for Federal cases. As of December 2010 under Federal Rule 26 only final reports, not draft reports, and supporting documents are discoverable; however, state court cases are governed by each state’s version of Rule 26. Therefore, it is imperative as an expert that you understand and talk to your attorney about what is and is not discoverable in that particular jurisdiction. Discoverable materials will include documents relied upon or reviewed such as your opinions in other cases, your publications, data and calculations, notes, and draft expert reports. As you conduct research and formulate your opinions it is important to work under the assumption that everything you review or use as supporting material might be discoverable, especially in state court. It is also important to establish with the attorney the best way to communicate since emails may be discoverable, as well.
   
For more information on the discovery process and tips on being a successful expert, check out our Effective Expert Witnessing Online Course hosted by Udemy.

Submitted by Wendy N. Pearson (President) and Eric Chase, PG