Part of preparing any expert witness for a deposition is discussing any items the witness should bring to the deposition. Expert witnesses typically have a great deal of leeway to bring items that help them organize, recall, and explain the opinions they are being asked to provide in the case.
In most instances, the documents an expert should bring to a deposition fall into one or more of these categories:
- Documents exchanged during deposition,
- Documents the expert relied upon when forming his or her opinions,
- Documents related to the expert’s opinion or discussion of that opinion during deposition.
Here, we’ll discuss the sort of documents that fall under each category and how to discuss each of them with your expert witness.
Documents Exchanged During Deposition
Items exchanged during discovery that relate to your expert witness typically include the expert’s report, supporting materials for the report, and information about the expert, such as the expert’s CV.
In an era where many discovery documents are exchanged electronically, it is typically the responsibility of the deposing attorney to provide paper copies of these items. Nevertheless, it may be helpful to advise an expert to review and bring his or her own paper copies. Doing so can be particularly helpful when preparation has revealed that an expert has difficulty recalling details in a certain area – for instance, the specific phrasing of his or her report or precise dates on his or her CV.
Whether or not the expert brings copies of these items to the deposition, make them a top priority in the expert’s review of materials prior to the deposition. Experts should know the contents of their own reports and CVs cold.
Documents the Expert Relied Upon When Forming An Opinion
Often, the documents or supporting materials the expert relied upon when forming his or her opinions are attached to the expert’s report and exchanged during discovery. In some situations, such as when an opinion is based on information in a textbook or other learned treatise, attaching the entire text to the report can prove unwieldy. Occasionally, attorneys may ask their experts to bring the entire textbook or similar item to the deposition.
Some experts like to bring a copy of their own report with annotations to make it easier to recall which items they relied upon in preparing the report. If an annotated copy of the report is used, an attorney should review the annotations before the deposition. Any items in the annotations that appear damaging to the case should be discussed with the expert and, if necessary, eliminated.
Documents Related to the Expert’s Opinion or Discussion
This third category typically includes any notes, timelines, or outlines the expert has prepared before drafting a report or in lieu of drafting a report. Whether to allow these materials and which materials to allow is up to the attorney. For example:
- Are notes or timelines acceptable?
- Can/should the notes include excerpts from sources (such as learned treatises) or highlighted sections from these sources?
- Can/should the expert prepare a list of the opinions they expect to offer at the trial, along with a summary of their reasons for each opinion?
If possible, make time before the deposition to review these items with an eye to their impact on your case.
In addition to addressing what the expert should bring to the deposition, it is wise to address how best to prepare those items. An expert who organizes his or her documentation personally will be able to access the right information quickly, even while under stress. Placing the organization task on the expert also helps to ensure the expert reads and understands every item in the file he or she brings to the deposition.
Finally, schedule plenty of time before the deposition to discuss which items the expert will need to bring. Leaving additional time helps ensure both that the expert understands the contents of his or her notes and other items, and it gives attorneys time to review those items if needed before deposition.