By James J. Mangraviti, Jr., Esq.
In many cases, a subpoena of the type that requires the production of certain items will accompany the expert witness’s notice of deposition. This type of subpoena is a subpoena duces tecum. The subpoena duces tecum is a very powerful discovery tool because it forces persons or parties who are not parties to the lawsuit to “produce and permit copying and inspection of designated books, documents, or tangible things in the custody or control of that person.” Notice that the rule only provides that the person who is served with the subpoena permit the documents or things to be inspected and copied. The attorney is not allowed to retain the inspected original documents and books. Another limitation is that the documents must be in the expert’s “custody or control.” The expert is not required to produce anything that is not in his “custody or control.” These are legal terms and experts should consult with counsel for advice regarding what they mean.
The “designated books, documents, or tangible things” are specified in an attached schedule or list. The expert should have retaining counsel review the documents that the expert intends to produce pursuant to the subpoena. Some of the information requested may be objectionable because it is privileged, a trial preparation document, unduly burdensome to produce, or for other reasons. The expert who is served with a subpoena duces tecum should do the following:
1. In the pre-deposition conference, she should have counsel review her subpoena and her file to see if some of the information requested need not be produced under the discovery rules.
2. She should not remove or try to hide potentially damaging documents.
3. She should not produce requested documents that are not properly discoverable under the rules of discovery.
If there is any question regarding what is legally required to be produced, the expert should obtain independent legal advice.
Experts who are served with a subpoena duces tecum are obligated to appear and produce the documents “as they are kept in the usual course of business or shall organize and label them to correspond with the categories in demand” in the schedule. Thus, the expert is not allowed to intentionally disorganize the requested documents in an effort to make life miserable for the opposing attorney.
Many problems can arise for experts who are unfamiliar with the rules or who try to play “fast and loose” with documents in their possession or control. Such conduct is a serious error in judgment, can damage one’s reputation and credibility, and may result in civil and, in some cases, criminal penalties. An untruthful response to the simple question, “Is this your entire file?” or “Was anything removed from the file by you or anyone else?” could be perjurious if done intentionally.
What kinds of things will counsel look for in an expert’s file?
The expert should be instructed to bring the entire contents of his or her file to the deposition. This can be done either by agreement with opposing counsel or by serving a subpoena duces tecum. Carefully review the original file maintained by the expert witness, paying particular attention to any notes or diagrams made by the witness, which may reveal his or her thought process. Copies of depositions or other file materials should be inspected page by page to see if the expert has made any notes, highlighting or other markings on these documents. These markings may provide important insight into what the expert views as significant supporting or damaging facts.
James J. Mangraviti, Jr., Esq., has trained thousands of expert witnesses through seminars, conferences, corporate training, training for professional societies, and training for governmental agencies including the FBI, IRS, NYPD, Secret Service, and Department of Defense. He is also frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. Mr. Mangraviti assists expert witnesses one-on-one with report writing, mentoring, and practice development. He is a former litigator who currently serves as Principal of the expert witness training company SEAK, Inc. (www.testifyingtraining.com). Mr. Mangraviti received his BA degree in mathematics summa cum laude from Boston College and his JD degree cum laude from Boston College Law School. Mr. Mangraviti has designed dozens of expert witness training programs and has personally taught experts in a group setting over 200 times since 1997. He is the co-author of thirty books, including:
How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness How to Be a Successful Expert Witness: SEAK’s A–Z Guide to Expert Witnessing How to Write an Expert Witness Report; How to Prepare Your Expert Witness for Deposition; The Biggest Mistakes Expert Witnesses Make and How to Avoid Them; and How to Market Your Expert Witness Practice: Evidence-Based Best Practices.
Phone: 978-276-1234 Email: jim@seak.com
__________________________________
[1] Fed. R. Civ. Pro. 45(a)(1)(C).
[2] Remember two things: 1) the best experts are transparent and 2) the cover-up is worse than the crime.
[3] Fed. R. Civ. Pro. 45(d)(1).
[4] David R. Geiger, et. al, Deposing Expert Witnesses (Boston, MA: MCLE, 1993) p. 68. See Section 4.4 for more on the expert’s notes.