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By Robert von Esch III, Esq.
With the expanding use of experts and their hefty fees, creative alternatives should be considered to discover the anticipated testimony of your opponent’s expert without incurring the expense of paying the expert’s fee for his deposition. One such alternative is taking the deposition of the expert’s Custodian of Records instead of the expert.
All too often, we pay exorbitant rates to depose an expert who takes pride in revealing as little as possible. This may be overcome by considering the possibility of getting as much or more by deposing the expert’s Custodian of Records. Often, the Custodian is the expert’s nurse, medical assistant or secretary, and this person is usually able to read the expert’s notes. Within the experience of many legal professionals, these staff members are far more candid than their “professional witness” aka “expert” employers are.
The deposition of the Custodian of Records is taken pursuant to a subpoena duces tecum, which should request production of original records. Some of the records which may prove to be important are:
* All items reviewed by Dr. Expert in connection with the anticipated testimony as a designated expert witness; including medical records, x-rays, any research writings, physical objects or reports reviewed in forming the opinions of preparing for the anticipated testimony.
* All reports prepared by Dr. Expert with reference to the examination and review of records for Peter Plaintiff.
* All correspondence concerning Peter Plaintiff (in any matter) received by Dr. Expert.
* All correspondence forwarded by Dr. Expert to any attorney, insurer or other person regarding Peter Plaintiff.
* A copy of all billing records for services rendered by Dr.
Expert as of the date of the scheduled deposition of the Custodian of Records. This includes original time sheets, sign in sheets, and all documents used to prepare the expert’s bill.
* The most current “Cirricula Virte” available for Dr. Expert.
* All photographs, videotapes, sketches, motion pictures, blow-ups or other visual depictions either prepared by Dr. Expert or reviewed by him in connection with the case.
* The entire file(s) maintained by Dr. Expert in connection with Peter Plaintiff’s case, including the file jacket.
* All writings (eg. logs, files, databases) reflecting the number of examinations of persons claiming personal injuries who have been examined by Dr. Expert for plaintiff attorney(s) within the past 24 months.
When the Custodian of Records arrives for the deposition, photocopy the entire file produced. Number each page, have the Custodian authenticate all documents produced and confirm everything requested in subpoena has been produced – or it doesn’t exist. Be sure you attach a copy to the deposition transcript.
Get background information about the Custodian; including length of employment with Dr. Expert, any previous employment by other professionals, actual job description/duties performed on a regular basis, who is daily direct report, how often Dr. Expert works for Plaintiff Firm and/or other plaintiff firms. Find out the “standard operating procedures” used by Dr. Expert in similar cases (trial cases). Believe me, you will find the Custodian of Records more candid about Dr. Expert’s practice than Dr. Expert will ever be.
Question the Custodian regarding duties that require reading of employer’s notes and handwriting. Then have the Custodian of Records read, into the record, any of Dr. Expert’s notes or writings, which you cannot decipher, Sometimes the staff can read the notes better than the expert can. The absence of notes in a key area can show that Dr. Expert ignored or failed to give that area serious consideration, yet was able to pontificate about it in Peter Plaintiff’s medical report(s).
It’s true, you may not get everything you would by deposing Dr. Expert, but there are truths contained from the lyrics of a classic song … “you just might find, you get what you need,” at a fraction of the cost. Costs saved in this area of discovery just might come in handy if/when the need arises to employ your own expert.
Robert von Esch III is a defense attorney with the firm of Spray Gould & Bowers. He can be reached at (714) 544-7200.
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