Leave It In the Car / Expert Discovery

Here are the first few minutes of a recent expert deposition:

Defense counsel: For your convenience, we have made a set of photocopies of the expert’s file materials. They are there in that pile in front of you on the table. We wanted you to have them.

Plaintiff’s counsel: Thank you.

Q: Mr. Jones, in looking at the pile of photocopies, I do not see any deposition transcripts from the case. Have you seen any of the transcripts?

A: Yes, but we didn’t copy those for you because you already have them.

Q: Also, in looking at the pile of photocopies I do not see that you have made many handwritten notes. Have you made any notes?

A: Not many, no.

Q; Well, where are the notes that you have made?

A: They are in my file.

Q: Where is your file?

A: I don’t have it with me.

Q: Where is it?

A: I didn’t bring it.

Q: But my question is, “Where is it?”

A: It is in my car.

Q: And where is your car?

A: In the parking lot.

Q: Why did you decide to leave your original file in the car?

A: It is too big. Counsel and I thought you wouldn’t want it since we brought you the copies.

Of course, the deposition was suspended while the expert went to the car and retrieved the file, which, in fact, was not big or bulky at all. It contained annotated deposition transcripts and the expert’s handwritten notes from significant conversations with defense witnesses, none of which were included in the pile of photocopies. The expert’s original file was also broken down into useful sub-files, unlike the photocopies. From all appearances, counsel did not want to produce the notes and attempted to hide them by instructing the expert to leave her file in the car.

Needless to say, the problem is not particular to defense counsel. Unethical tactics and bad advice to experts are possible from either side of a case. Advising an expert to withhold or attempt to withhold properly requested discovery materials is always bad advice, and it is bad on many levels.

First, nothing can be plainer or more important than an attorney’s obligation to act in a way that is consistent with litigation as a search for the truth. See Nix v. Whiteside, 475 U.S. 157, 166 (1986).  Attorneys have an ethical duty to produce at deposition all material within the scope of Rule 26 that is properly requested. Advising or instructing a witness to withhold documents clearly within the scope of discovery is behavior that can result in a Rule 26 or Rule 37 sanctions or to a bar complaint.

Second, attempting to hide evidence does not advance the interests of a client. In the case above, it simply delayed the start of the deposition and put the expert in an embarrassing position. Like many human interactions, a deposition is a sometimes-subtle battle for control. Each side wants to choose the vocabulary, delimit the questions and answers, and create the most favorable record possible. When an expert is embarrassed and ashamed at the outset, she is not going to be at her best when it comes to the substance of the deposition. Any action by a lawyer that throws the expert off the most important issues in the case is a mistake.

Another, more common, version of “leave it in the car” is asking or allowing experts to leave important documents in their briefcase. This happened in another recent deposition recorded on videotape. The first several minutes of the video show the expert repeatedly looking chagrined, ducking under the table, and emerging with a new batch of documents that should have been available to begin with. Why didn’t he just pull all of the documents out the first time he was forced to reach into the briefcase? Or better yet, why not just put everything on the table before the deposition begins? The videotape of the expert grudgingly pulling file materials from under the table makes it virtually impossible for her side to try the case. The embarrassing video becomes Exhibit A for the opposition: ladies and gentlemen of the jury, they are going to hide the evidence if they can get away with it.

Since our legal system has long ago abandoned the concept of trial by surprise, and since the Maine and Federal Rules of Civil Procedure provide for expert discovery, we as trial lawyers should commit ourselves to, and remind each other of, the importance of ethical conduct during depositions and other phases of discovery. Nothing else serves our clients or society so well.

In that spirit, here are two suggestions on the topic of expert disclosure and expert depositions: (1) if you will be relying on Rule 702 opinion testimony in your case, full disclosure of your expert’s opinion is the best approach; (2) if an expert has been designated to testify against your client, you should prepare a good Rule 30 notice and be thoughtful as you schedule and take the deposition.

As to the first suggestion, full disclosure, there are two basic opportunities to lay out the anticipated testimony of your expert. The first comes in the Rule 26 disclosure and the second when the expert is tendered at deposition. Full disclosure at both of these stages has many benefits, including the following:

• approaching expert disclosure with the idea that you and the expert intend to be open and thorough requires both of you to work very hard to understand the case and explain it clearly. If you and the expert cannot do that by the time of the Rule 26 designation, your client may be in trouble and you may be at risk of making mistakes from which none of you can recover.
• spelling out your expert’s opinion in detail in the Rule 26 disclosure provides you with a resource to come back to if the expert’s memory or confidence flags during deposition or later testimony.
• a Daubert-proof disclosure is likely to convince the other side not to burden you or the court with a Daubert-based motion to exclude testimony or for summary judgment. In short, full and fair disclosure puts you in the best position to move forward with the case efficiently and effectively.

The second suggestion is about properly preparing for and conducting an expert deposition. While every case is different and the role of every expert depends on the case, every successful expert deposition is based, accidently or intentionally, on undermining the expert on at least one of the Federal Rule 702 factors: the expert’s qualifications, the foundation for her opinions, and whether she has appropriately used reliable principles and methods in reaching her conclusions. This is so, whether your case is in state or federal court, because the factors listed in the federal rule are not just technical requirements of federal practice. They are, practically speaking, the outline of every strong expert opinion.

If the expert is vulnerable on one of the Rule 702 factors, that is where the attack should be focused. Each step in preparing for and taking an expert’s deposition, from drafting the notice to choosing the order in which to raise particular topics, to deciding which exhibits to use, should involve identifying and exploiting as many of the Rule 702 factors as possible.

In the event that the opposing expert is not vulnerable on any of the Rule 702 factors, your best hope may be to get her to admit that she might be vulnerable, or that your expert is not vulnerable either. In such a case, you as the attorney may have made an intake mistake. But that is another subject altogether.