No more depositions?
Lately I’ve had 3 cases move forward to trial without a deposition of my expert opinions/reports. This is an interesting trend (or it could be a coincidence) so I thought I’d examine it further.
Typically I do work on a case, write a report or notes, with either a damage calculation or valuation, if appropriate. Then I’m deposed to discuss the report. The deposition is a chance for both sides to get more focused on what the issues are, and sometimes to get closer to settlement. Sometimes there are minor changes as a result of points brought up by opposition, and we move forward to trial. Trial is somewhat a repeat of the deposition, but typically focused on certain areas.
In California, there is law about an expert demand/exchange 50 days before trial, and also there are sometimes relevant local rules in conjunction with trial/settlement conferences as another deadline for disclosing an expert.
The following is taken from a recent case in which opposition chose/forgot to depose me, and suddenly remembered on the eve of trial they were supposed to, and tried to ask the court for forgiveness for their mistake. These outline the rules/precedent surrounding experts:
Plaintiff fully complied with the expert disclosure requirements in Code of Civil Procedure §§ 2034.260 and 2034.270, including the requirement that “[i]f a demand for an exchange of information concerning expert trial witnesses includes a demand for production of reports and writings as described in subdivision (c) of Section 2034.210. All parties shall produce and exchange, at the place and on the date specified in the demand, all discoverable reports and writings, if any, made by any designated expert described in subdivision (b) of Section 2034.210.” (Code Civ. Proc. § 2034.270.) Contrary to the Motion in Limine, there “was not a violation of section 2034.270 since the reports and writings were not in existence on that date.” (See Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 949.) “Neither this provision nor any other requires that expert witnesses refrain from creating new or additional reports or writings after the specified date.” (Id. at 951.) Indeed, “the Legislature appears to have anticipated that experts would continue their preparations after the specified date.” (Id. at 952.)
Notably, Defendants elected not to take the deposition of Bates to determine the basis for his opinion. Under the circumstances, there is no basis to exclude Bates’ expert witness opinions, reports or writings. (See Boston, supra, 170 Cal.App.4th 954 [trial court property denied motion defendant’s motion to exclude plaintiff’s expert witnesses’ opinions where defendants made a “strategic choice not to depose [plaintiff’s] expert witnesses …”].)
It makes for an interesting situation. Of course other attorneys have tried to exclude experts but it is difficult if the expert has sound opinions to share and has the relevant qualifications and meets the various state/federal requirements such as that of the Daubert standard. Perhaps this string is just a coincidence and depositions will return next year !