Category Archives: Trial Rules
1. Compliance with Federal Rule of Civil Procedure 26. This probably is a good
place to start. The Rule provides in pertinent part as follows for witnesses hired in anticipation
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule
26(a)(1), a party must disclose to the other parties the identity of
any witness it may use at trial to present evidence under Federal
Rule of Evidence 702, 703, or 705.
Regarding reports, the Rule goes on to state:
(B) Witnesses Who Must Provide a Written Report.
Unless otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report—prepared and signed by
the witness—if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party’s employee regularly involves giving expert testimony.
The report must contain:
(i) A complete statement of all opinions the witness will
express and the basis and reasons for them;
ii) The facts or data considered by the witness in forming
(iii) Any exhibits that will be used to summarize or support
(iv) The witness’s qualifications, including a list of all
publications authored in the previous 10 years;
(v) A list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) A statement of the compensation to be paid for the study
and testimony in the case.
As to those witnesses who are typically skilled witnesses or fact witnesses with specialized or
technical knowledge, it states:
(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:
(i) The subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
(ii) A summary of the facts and opinions to which the witness
is expected to testify.
The timing of these disclosures is typically outlined in the Case Management Plan as noted in the
(D) Time to Disclose Expert Testimony. A party must make these
disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
(i) At least 90 days before the date set for trial or for the case
to be ready for trial; or
(ii) If the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure.
(E) Supplementing the Disclosure. The parties must supplement
these disclosures when required under Rule 26(e).
Do not forget the obligation to seasonably supplement your expert responses!
This obligation is continuing and requires no additional request by the opposing party.
2. Narrative of facts versus summary of materials reviewed.
Narrative formats are time consuming and subject your expert to attack if he misstates or
misinterprets a record. It also poses problems when there are conflicts in the evidentiary record
that have to be resolved by the jury. Providing a factual summary does require your expert to
review and analyze the record and shows that he has considered all relevant evidence. This
process also better prepares the expert to testify and draft reports may expose gaps in your
expert’s knowledge before final conclusions are reached. However, ultimately the documents are
the best evidence, and listing the items is both cheaper and avoids the pitfalls associated with
summarizing voluminous records.
3. Oral reports versus written reports. Early reports should probably be made
verbally. A summary of findings can be made by counsel in his notes which is protected under
the work product privilege. Once the record matures and the facts are clear, reports should be
considered depending on the requirements of your jurisdiction.
4. The problem with draft reports. Such reports only pose a problem if
discoverable. In federal court only the final draft is discoverable. Check your state law on this
topic to see if it differs.
5. Communications with expert and the work product privilege.
Such communications only pose a problem if discoverable. In federal court only correspondence
containing assumptions of fact or which outline the factual basis for the expert’s opinion are
discoverable. Check your state law on this topic to see if it differs.
Working with your expert on providing a report that is accurate, complient, clear and concise is critical. This checklist should help.
Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:
Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which objections must be made or waived:
(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:
(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition. [Emphasis Added].
The Rules should be abided by during the course of the deposition.
Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.
Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):
1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.
2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).
3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hall, supra.
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.
8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere, 182 F.R.D. 614 (D. Nev. 1998).
10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.
There is an assault on our privacy. We need look no further than headlines involving Russian hacking of our government and political institutions such as story reported by The NY Times today. The assault on our client’s privacy is also underway as part of the civil discovery process. Attorneys now seek to rummage through a client’s social media accounts and demand usernames and passwords to accomplish this invasion of privacy without any factual basis or good cause.
Fishing expeditions are not allowed. Here is the objection I use:
Objection, this request is overly broad and unduly burdensome. See Ind. T.R. 26(B)(1). Further, this request is non-specific and calls for a general fishing expedition which is prohibited under Indiana law in violation of the reasonable particularity requirement of Ind. T.R. 34(B). See Canfield v. Sandock, 563 N.E.2d 526 at 529-531(Ind. 1991). The simple fact that a claimant has had social communications is not necessarily probative of the issues in this case. See Rozell v Ross-Holst,2006 WL 163143 (S.D.N.Y. Jan. 20, 2006). There is no general right to have access to an entire Facebook account and such a request is no different than requesting the right to search through a party’s entire house, office, or wherever making the request a “fishing expedition”. See also, McCann v. Harleysville Ins. Co. of New York , 78 A.D.2d 1524 (N.Y. A.D. 2010)(Defendant “failed to establish a factual predicate and essentially sought permission to conduct a fishing expedition into plaintiff’s Facebook account based on the mere hope of finding relevant evidence which is not allowed); Tompkins v. Detroit Metro. Airport, No. 10-10413, (E.D. Mich. Jan. 18, 2012)(Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view and engage in the proverbial fishing expedition, in the hope of finding something on a Facebook account.).
Social media may be discoverable “specifically “, but certainly should not be invaded “generally”. Privacy matters to us all and must be honored even in this day of pervasive electronic communications and connections.
I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states:
Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.
Interestingly enough, no mention of depositions is made in the proceedings excluded.
Ind.T.R. 30(C) states in part:
Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(B). *** All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. When there is an objection to a question, the objection and reason therefr shall be noted, and the question shall be answered unless the attorney instructs the deponent not to answer, or the deponent refuses to answer, in which case either party may have the question certified by the Reporter, and the question with the objection thereto when so certified shall be delivered to the party requesting the certification who may then proceed under Rule 37(A).
Ind. T.R. 32(B) states:
Objections to admissibility. Subject to the provisions of Rule 28(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any depositions or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
* * *
(D) Effect of errors and irregularities in depositions
(3) As to taking of deposition.
(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. ***
Ind. T.R. 43(B) then reads:
Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
My take away from all of this is that if you want to use the deposition at trial or in connection with a motion for summary judgment, then the rules of evidence would apply. Also, if you do not object to the presence of the expert at the time of the deposition pursuant to IRE 615 the objection is waived because it could have been obviated by the opposing attorney by ordering the expert to leave. If the opposing attorney disagrees then you would have to hope you win the issue at trial or stop the deposition and immediately file a motion to terminate under Ind. T.R. 30(D). As a result, I would think a court would find IRE 615 applicable to a deposition.
That being said, I think having an expert present to aid you in examining another expert would usually be “a person whose presence is shown by a party to be essential to the presentation of the party’s cause” under IRE 615(C). In Ledden v Kuzma, 858 N.E.2d 186 (Ind.Ct.App.2006), the Kuzmas sought a protective order barring Ledden’s expert from attending Ledden’s deposition of the Kuzmas’ expert witness. The Court of Appeals stated:
Under appropriate circumstances, it may be proper for a protective order to be granted barring an expert -or anyone else – from attending the deposition in question. If a party is able to meet the requirements of Trial Rule 26(c)(5), then a protective order would be warranted. But if, as here, a party is unable to provide any particular and specific demonstration of fact in support of the request for a protective order, then there is no reason – based in logic or rule – to bar the expert from attending the deposition.
Generic allegations of prejudice were made in Ledden v Kuzma. A factual demonstration supported by evidence of real harm seems to be required given the holding in Ledden v Kuzma.
Trial is a different thing. The argument for the a separation of witnesses is weaker at the discovery stage since you may need the help of your own expert to pin someone down at the pretrial discovery stage whether investigation is needed. While IRE 615(C) does allow a party to designate a person whose presence is essential to their presentation to be present in the courtroom, this creates practical problems and raises concerns about “fairness in administration” and “the end that the truth may be ascertained and proceedings justly determined.” See IRE 102 Purpose and Construction.
When I had this occur in a trial, I successfully argued that the defense expert is not allow to watch the trial and weigh evidence as this is the sole province of the jury. IRE 702(A) states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Allowing expert to attend the trial and opine is a kin to having a shadow jury. Such a process misleads the jury as to an expert’s true role which is to aid the jury in deciding the case, not supplant them. Trial testimony by the expert could run afoul of Rule 704(B) since the expert would in essence be testifying as to whether a witness (including your expert) testified truthfully by opining after watching all the witnesses testify. Also, Ind.T.R. 26 requires that the basis and opinion of an expert be seasonably disclosed before the trial. An expert’s opinion would change and morph as the trial progressed. The expert, not the jury, would resolve questions of fact, credibility and the weight to be given witness testimony and items of evidence. Such expert testimony could impair or deprive a party of their constitutional right to trial by jury.
So, what do you think?