Using an Expert at Deposition
A recent Federal Court case highlights the value of having an expert at the deposition of an opposing witness.
The principal issue in Brown v. Northrop Grumman Corporation, CV 12-1488 (E. D. N. Y., July 22, 2013), was whether an expert’s handwritten notes taken during the deposition were discoverable. The Court determined that the notes should be deemed attorney work product because they were taken at counsel’s request to assist counsel with the technical aspects of plaintiff’s deposition. As such, they were privileged from disclosure. Moreover, the Court found the notes to be “opinion work product,” since they contained the expert’s thoughts and impressions of the deposition testimony. “Opinion work product” is entitled to heightened protection from discovery, even when the opposing party can show a substantial need for the materials and no alternative method for obtaining the information. A copy of the order can be found here.
COMMENT:
Land title disputes frequently benefit from retaining an expert as soon as the dispute comes to light. An experienced expert can uncover subtle information in “routine” documents, assess the strengths and weaknesses of the competing claims, assist in drafting pleadings, frame discovery requests and responses, develop timelines, identify discrepancies in the adversary’s case, suggest legal theories, assist at depositions (as in Brown), craft summary judgment affidavits, etc. -- all before the case even comes to trial!