You missed the date to exchange expert witness information. What do you do now? No, you shouldn’t just send it to opposing counsel and hope for the best. You’ll need to file a Motion to Submit Tardy Expert Witness Information.
If you don’t submit expert witness information on the exchange date specified in the demand, you may apply to the court for an order granting leave to submit that information on a later date. CCP §2034.710.
You need to make Motion to Submit Tardy Expert Witness Information as soon as the tardiness is discovered. Unless the court permits the motion to be made at a later time “under exceptional circumstances,” the motion has to be made sufficiently in advance of the CCP §2024.020(a) discovery cutoff to permit the taking of depositions of any experts to whom the motion relates.
And if your motion is granted, be prepared to make the expert available for a deposition “immediately.” CCP §2034.720(d).
A court may grant a Motion to Submit Tardy Expert Witness Information only after it finds that certain elements have been met. CCP §2034.720. Here’s a handy checklist to use before making your motion:
___ Check the Timing. The motion must be made either:
- A sufficient time in advance of the time limit for completion of the expert’s deposition under CCP §2024.030 so that the deposition of the expert to whom the motion relates can be taken within that time limit (on or before the 15th day before initial trial date); or
- At a later time, if the court finds that exceptional circumstances exist.
___ Prepare a Declaration. The motion to submit tardy expert witness information must be accompanied by a declaration, stating facts showing:
- A reasonable and good faith attempt to informally resolve each issue presented by the motion;
- Failure to submit the information earlier was the result of mistake, inadvertence, surprise, or excusable neglect;
- The motion to submit tardy expert witness information was made promptly after learning of the mistake, inadvertence, surprise, or excusable neglect; and
- Copies of the proposed expert witness information required by CCP §2034.260 were thereafter served promptly on all other parties.
___ Address the Trial Court Considerations. The trial court must take into account both:
- The extent to which the opposing party relied on the absence of a list of expert witnesses; and
- Whether the opposing party will be prejudiced in maintaining an action or defense on the merits if the motion is granted.
___ State Conditions of the Order. In the motion, the moving party should suggest the following conditions:
- The moving party will make the expert in question available immediately for a deposition under CCP §§2034.410-2034.470, and at any other times that may be just;
- The court may allow any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated;
- The court may continue the trial for a reasonable time; and
- The court may award costs and litigation expenses to any party opposing the motion.
___ Consider Sanctions. The court must impose a monetary sanction (which includes attorney fees) against any party, person, or attorney who unsuccessfully makes or opposes the motion, unless it finds:
- The one subject to the sanction acted with substantial justification; or
- Other circumstances make the imposition of a sanction unjust.
For everything you need to know about dealing with expert witnesses in California, turn to CEB’s acclaimed California Expert Witness Guide. For all the ins and out of the exchange of expert information, check out CEB’s California Civil Discovery Practice, chap 11.
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