Resolving Daubert Challenges
Depositions (and Other Discovery)
Expert discovery seldom ends with service of the expert's report. Usually, the adversary will seek and obtain further discovery, especially if a Daubert challenge is contemplated. The usual vehicle for additional discovery is the expert's deposition. Want a generic expert deposition checklist? No problem.
Reports as Substitutes for Depositions
Before the report requirement was added to Fed. R. Civ. P. 26 in 1993, the usual discovery practice was to elicit very basic summaries of proposed expert testimony through interrogatories and then to flesh out the responses via deposition. That approach proved unsatisfactory, according to the Advisory Committee Notes to the 1993 amendments to Rule 26, because the information disclosed in interrogatory responses "was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for the deposition of the witness." The Advisory Committee believed that if more detailed reports were required, expert depositions could be shortened, or eliminated altogether "in many cases."
In retrospect, the Advisory Committee's prognostications of judicial economy may seem almost comically naive, but in fairness, the report requirement might have streamlined the expert discovery process, had other events not intervened. Here is a timeline:
Whatever the Advisory Committee may have expected, the truth is that after Daubert, expert reports just whet the adversary's deposition appetite. To be sure, an expert report will now contain a fuller statement of the expert's opinions than was formerly customary in interrogatory responses, but the adversary will now want a crack at discrediting the expert's methods. The proponent may try to argue that an expert deposition is unnecessary, because the expert's report already supposedly contains a "complete" statement of the relevant information. But such arguments will generally be futile, because the actual text of Rule 26(b)(4)(A) provides: "A party may depose any person who has been identified as an expert whose opinions may be presented at trial."
Scheduling the Expert Deposition
Under Rule 26(b)(4)(A), the expert's deposition may not be convened until after the report is provided. The courts will generally permit the deposition to be scheduled prior to any motions to which it may be germane -- at least if the need to do so has been anticipated in a Rule 16 scheduling order.
Under Fed. R. Civ. P. 30(a)(2)(B), a witness who has already been deposed in the case may not be deposed again except by agreement of the parties or leave of court. Courts will sometimes authorize multiple depositions of the same experts at different phases of the proceedings -- e.g., one deposition for class certification purposes and a later deposition for merits purposes. However, when the adversary has been provided with the expert's report, the rationales for "bifurcated" depositions begin to lose much of their force. Unless authorization for multiple depositions has been secured in advance, prudent counsel will cover their Daubert territory the first time the expert is deposed.
Under Rule 30(d)(2), the maximum length of a deposition is one day of seven hours, except by agreement of the parties or leave of court. However, the court "must" allow more time if "needed for a fair examination." Parties who are not fabulously wealthy have an incentive to keep the depositions short, because under Rule 26(b)(4)(C), the deposing party must pay the expert a "reasonable fee" for the expert's time. Note, however, that a "reasonable fee" does not necessarily equate to the hourly rate charged by the expert to the client who retained the expert -- especially if the deposition has been prolonged by expert filibuster.
Conduct of the Deposition
Volumes could be written on how to take and defend expert depositions in the Daubert era. Here, just a few brief remarks will be ventured on the subject of who represents whom.
The key point to absorb is simple. The expert doesn't have a lawyer. Fairness, by itself, would dictate that experts be told this from the moment they are retained. But after Daubert, tactical considerations absolutely dictate that experts know, by the time of deposition, that the answer to the question "Who is representing you at this deposition?" is "Nobody." This does not mean that proponent's counsel cannot protect the expert from abuse or defend the expert's honor from attack. Chivalry is allowed, especially when it springs from enlightened self-interest. But one main undercurrent in Daubert jurisprudence is that the courts will frown on expert testimony that has been specially concocted, in smoke-filled rooms, for purposes of litigation. Having gone to appropriate lengths to preserve the expert's actual independence, proponent's counsel should not let the effort go to waste by failing to preserve its appearance as well. This means, among other things, that proponent's counsel will avoid the rookie mistake of asserting attorney-client privilege whenever the deposing party asks about communications between the expert and counsel.
Reading and Signing
Under Rule 30(e), all deponents have the right to review the transcript within thirty days and to make any desired changes "in form or substance." Proponents should make this request as a matter of routine, and follow through with the expert, so that any changes that may be necessary for Daubert purposes can be effected. Explain to the expert that the transcript is not physically revised as a result of this process. Rather, the witness's requested changes are itemized on a form, which is then appended to the transcript.
Other Expert Discovery
Document requests to the proponent will capture any written material retained by proponent's counsel but not by the expert -- e.g., notes, drafts, data, lawyer-expert correspondence. Apart from this, the expert's report and deposition normally should constitute sufficient expert discovery. Counsel sometimes propound interrogatories calling for input from experts, but usually such discovery is pointless and unduly burdensome where a report has been served and a deposition permitted. If a court does require a party to respond to such "expert contention" interrogatories, consideration should be given to seeking reimbursement under Rule 26(b)(4)(C) for any fees chargeable by the expert in connection with the responses.