Expert — continued from Page 40
ordinary fact witnesses [because] .... [¶] ... the other parties must prepare to cope with witnesses possessed of special- ized knowledge in some scientific or technical field. They must gear up to cross-examine them effectively, and they must marshal the evidence to rebut their opinions.” (1 Hogan & Weber, Cal. Civil Discovery (1997) Expert Witness Disclosure s 10.1, p. 525.) ‘Late disclosure of experts ... frus- trates the very purposes of the discovery statutes, and should be permitted, with appropriate safeguards and limits, only when absolutely necessary to avoid a miscarriage of justice.’ (Kennedy & Martin, Cal. Expert Witness Guide, supra, s 10.18, at p. 268.) (Id., 20 Cal.4th at 146-147.)
There is no duty of disclosure of a consulting expert’s opinion evidence prior to his expert-witness deposition Misunderstanding continues to per-
sist among practitioners and even some members of the trial bench as to the tim- ing of a party’s obligations to disclose expert witness evidence pursuant to C.C.P., § 2034.210. It is settled law that, whether or not a
demand for exchange of expert witness opinion evidence has been made in a case, the identity and opinions of experts retained by a party to furnish consultation in a civil matter are considered derivative, protected attorney work product under the work product doctrine of C.C.P., § 2018.010, et seq. (County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 656 [271 Cal.Rptr. 698].) Until the expert is actually produced
for his deposition, or a voluntarily disclo- sure is made of his or her opinion evi- dence (e.g., offering declaration or affi- davit supporting summary judgment/ adjudication), the opinions of the expert remain protected attorney work product. “The designation of a party as an expert trial witness is not in itself an implied waiver of the party’s attorney-client privi- lege because his initial status is that of a possible expert witness. If the designation is withdrawn before the party discloses a significant part of a privileged
42— The Advocate Magazine JULY 2011
communication (as in this case), or before it is known with reasonable cer- tainty that the party will actually testify as an expert, the privilege is secure; if the party provides privileged documents or testifies as an expert (such as by stating his opinion in a declaration or at a depo- sition) the privilege is waived.” (Shooker v. Superior Court, (2003) 111 Cal.App.4th 923, 928-930 [4 Cal.Rptr.3d 334].) This means that even after an expert
witness has been formally designated as a retained expert, (s)he may be withdrawn at any time prior to deposition or a sub- stantial, voluntary disclosure of opinion evidence, retained as a consultant, and his or her opinions remain nondiscoverable attorney work product. (See 2 Weil and Brown, California Civil Procedure Before Trial, Rutter Group, ¶ 8:1687.5 to 8:1687.9.) However, once the designated expert’s deposition is taken, (s)he can be called by any party who is authorized to offer expert testimony at trial. (C.C.P., §2034.310(a).) Occasionally, some controversy has
arisen over the right of parties to “demand the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by the
expert...in the course of preparing that expert’s deposition.” (C.C.P., § 2034.210(c).) If demanded, these “discoverable”
reports and writings must be produced at the time of the simultaneous exchange called for under C.C.P. § 2034.270. Exclusion of an expert’s opinions later may be authorized under §2034.300(d) if discoverable reports and writings are not disclosed under § 2034.270. Some practitioners and jurists have
interpreted these statutory requirements as obligating a designating party to dis- close all of his or her expert’s work prod- uct (e.g., “any [of the expert’s] reports and writings”) at the time of the designa- tion. However, such an interpretation would obviously lie at odds with the plethora of case authorities above, which protect such derivative work product even after expert designations. The flaw in this argument is that in making it, the word “discoverable” which
precedes “reports and writings” must essentially be ignored. Rather, “Discoverable reports and writings” as used together, would seem obviously to mean that disclosure of reports and writ- ings becomes obligatory only when they have become “discoverable,” i.e., no longer subject to the work product doc- trine. Even “after an expert is designated, (s)he can be withdrawn at any time prior to giving an expert deposition (or other declaration), be retained as a consultant, the former expert need not turn over his or her expert “report” at all. (Weil & Brown, supra, at ¶ 8:1687.9; Kennedy, supra, 64 Cal.App.4th at 679.) Until the expert is presented for deposition (or the expert offers a declaration thus only at that point finally waiving the work- product privilege), no such reports need be turned over because the expert may still be withdrawn and “his or her reports remain protected as work product.” (Weil & Brown, supra, at ¶ 8:1687.9; Kennedy, supra, 64 Cal.App.4th at 679. The obvious exception to this rule
involves doctors who have performed IME examinations on plaintiffs. This follows because the Discovery Act expressly imposes a statutory waiver on any work- product privilege assertion as to any of the examiner’s writings and/or testimony, under C.C.P., § 2032.610(c) [formerly § 2032(h)]. (Kennedy, supra, 64 Cal.App.4th at 679.)
Any failure to designate experts timely in response to a timely demand for exchange precludes the right to call expert testimony and must be immediately corrected All experts must be identified in the
listing portion of a litigant’s expert desig- nation. Under settled law, any person who will be called at trial to give expert testimony must be included on this list...” (Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1421 [116 Cal.Rptr.2d 570] [emphasis sup- plied].) “Retained experts must be desig- nated, and the designation must [further] be accompanied by the ‘expert declara- tion’ ... .” (Id., at 1422-1423.) The failure to list an expert in the party’s expert-
See Expert, Page 44
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