If a party serves a timely demand to exchange expert witness information under CCP §2034.210(a), the exchange becomes mandatory and failure to participate in the exchange will preclude a party from offering expert testimony in the case. Perry v Bakewell Hawthorne, LLC (2017) 2 C5th 536, 543. The exchange of expert witness information has specific requirements that can trip you up. Review these four points and you’ll know what to do.
- Exchange of expert info must be in writing. The parties’ exchange of expert witness information must be in writing. CCP §2034.260(a). The actual exchange can happen in person between the parties’ attorneys or by service on the other party by any method specified in CCP §1011 or §1013, which includes electronic service, on or before the date of exchange.
- Info must list the experts or state that you’re not using any. The exchange of expert witness information must include a list of the names and addresses of every natural person, including any party, whose oral or deposition testimony a party expects to offer as expert opinion evidence at trial. If, on the other hand, there is no intention to offer expert testimony at trial, then this intention must be clearly stated. CCP §2034.260(b).
- Accompanying declarations are often required. If the list includes (1) an expert who’s a party, (2) an expert who’s employed by a party, or (3) an expert retained “for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action,” you’ll have to accompany the information with a declaration. CCP §2034.260(c). The declaration is not made by the expert witness; instead, it’s a statement signed by the party’s attorney or self-represented party under penalty of perjury. This declaration must include:
- A brief narrative statement of the qualifications of each expert;
- A brief narrative statement of the general substance of the testimony that the expert is expected to give;
- A representation that the expert has agreed to testify at the trial;
- A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition on the specific testimony, including any opinion and its basis, that the expert is expected to give at trial; and
- A statement of the expert’s hourly and daily fee for providing deposition testimony.
- Reports and writings made in course of preparing expert’s opinion must be produced if requested. If a party also demanded under CCP §2034.210(c) the production and exchange of all discoverable reports and writings made by an expert in the course of preparing the expert’s opinion, then all parties (including the party initiating the demand) must produce and exchange these items on the date specified in the demand. Note that a demand under CCP §2034.210(c) won’t yield materials that weren’t made “by the expert” or “in the course of preparing that expert’s opinion.” Production of otherwise discoverable writings that don’t fall within the statutory description in CCP §2034.210(c) may be obtained by informal agreement of counsel, stipulation, or other discovery methods (such as by subpoena duces tecum or demand for inspection).
Want to see a form of exchange with a statement of intention not to offer expert trial testimony, and another one with a list of expert witnesses with the attorney’s declaration included? CEB includes these samples in California Expert Witness Guide, chap 10. Get guidance on all three of these points and much more on discovery of expert witness information in civil cases, including handy checklists, in California Civil Discovery Practice, chap 11.
Other CEBblog™ posts you may find useful:
- Checklist for When You’re Late for the Important Expert Witness Disclosure Date
- 5 Areas for Questioning an Expert at Deposition
- Warn Your Expert Against Writing
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